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How Do I Sue for Medical Malpractice?

Medical providers have a duty of care to their patients. If you believe you have been improperly treated by a medical professional, you may want to file a medical malpractice claim to recover damages for injuries they have caused. In today’s blog, we discuss the elements of a medical malpractice lawsuit and the litigation process for seeking damages.

Elements of a Medical Malpractice Lawsuit

Common claims in a medical malpractice lawsuit are:

  • misdiagnosis from a healthcare professional;
  • delay in diagnosis;
  • medication mistakes;
  • error during surgery;
  • anesthesia errors;
  • birth injuries.

To better understand how to proceed with a medical malpractice lawsuit, it is important to know Tennessee’s statute of limitations to bring forward a medical malpractice case, who holds the burden of proof, and the state’s requirement of expert witness testimony in trial.

Statute of Limitations in Tennessee

In Tennessee, medical malpractice claims must be filed within 1 year of the date the injury is discovered and no more than 3 years after the date the injury actually occurred. An exception exists for injuries involving a foreign object that was left inside a patient's body during a procedure.

Note that for minors under age 18 and persons "of unsound mind," the time limit falls 1 year after the minor's 18th birthday or the date the individual becomes of sound mind again.

Burden of Proof on the Patient

The burden of proof in a medical malpractice case rests on the patient. Four factors involved in proving the case are:

  • The injured party must prove that they had a doctor-patient relationship (the doctor agreed to provide treatment for the patient). A doctor-patient relationship does not exist if the injured party simply receives medical advice from a friend or acquaintance.
  • The patient must prove a breach of duty; that is, the medical provider did not deliver the same level of care as other professionals with the same degree of training and level of experience.
  • The injured patient must prove causation (the provider caused the injuries).
  • The litigant must prove damages. Medical malpractice suits are meant to make patients “whole” again, so the patient must have lost something to file suit. Tennessee law allows 3 types of damages – compensatory damages (medical bills and lost wages), non-economic damages (pain and suffering or other intangible losses), and punitive damages (in cases of fraud or malicious intent).

Expert Witness Testimony

In a medical malpractice lawsuit, Tennessee also has several requirements governing the use of expert medical witness testimony before and during a trial. One requirement is that claimants must consult an expert in the field. This affidavit of merit requirement, also known as the “certificate of good faith” requirement, must be filed within 90 days of filing a medical liability claim, and it states that the injured person or that person's attorney consulted one or more experts about the case, who will then sign a written statement stating there is a good-faith basis for the action. Note that if the Certificate of Good Faith is not filed within 90 days, the court may dismiss the case "with prejudice," which prevents the injured plaintiff from filing it again.

An expert witness is also needed during the trial. The witness must work in a field that is relevant to the case (e.g. if a spinal surgeon caused the injury, the expert should be a spinal surgeon), and they must have worked in that field for at least 1 year before the incident. The expert also has to be licensed in Tennessee or a bordering state and must understand the standard of care expected in the location that the injury occurred. In some cases where such an expert cannot be found, the court may waive the requirement.

The Litigation Process

Oftentimes, insurance companies are willing to settle medical malpractice cases to avoid trial. Patients usually prefer this as well, as they can receive the compensation they need quickly. Going to trial and submitting appeals can take years, so this is a common and efficient way for people to get back on their feet.

Parties can settle without arbitration or mediation, though malpractice attorneys often find that arbitration or mediation helps injured parties achieve the most desired outcome. In the case of mediation, both parties will work to reach a settlement with the help of a mediator. It is advisable to bring an attorney for representation at this stage in the process.

Similarly, arbitration is when both parties work out the specifics, though unlike mediation the arbitrator makes the decision in this scenario, acting like a jury and judge. The arbitrator assigns fault and chooses the amount of damages. Good legal representation during arbitration helps claimants receive the damages they deserve.

Note that if a settlement is not reached, the claimant can take the case to trial, where their malpractice attorney will present the case in front of a jury of 12 people or a judge. A unanimous verdict is required to close the case, and the claimant can submit a Notice of Appeal 30 days after the end of the trial if they are not satisfied with the outcome.

Seek an Experienced Lawyer for Your Case

If you feel you have experienced mistreatment from a medical professional, you have the right to file a claim of medical malpractice. Contact an experienced attorney immediately to take on your case, especially as Tennessee’ statute of limitations for such a claim is 1 year. The lawyers at Eldridge & Blakney can assess the facts of your case and walk you through every step of the litigation process, whether in the negotiations room or in trial.

Put knowledge and experience on your side. Contact Eldridge & Blakney today to schedule your free consultation.