Understanding the Medical Malpractice Claim Process


Whether you are a new grad or a veteran healthcare provider, if you have never been involved in a malpractice lawsuit before, you may be curious as to what goes on in a typical claim. This article highlights the key events in a medical malpractice action and is intended to provide you with a better idea of what to expect if you are ever sued for alleged malpractice.

Key events in a Malpractice case

Malpractice cases typically begin with an adverse event during a procedure or medical event, or with the eventual discovery of an adverse outcome associated with the previously received treatment. Such discovery can sometimes come years after the procedure or medical event. The injured patient may choose to bring a lawsuit by filing what is known as a “Complaint.”

After a complaint is filed, the medical provider must be given notice of the claim. This is typically accomplished via certified mail. If you are named in a lawsuit, you should promptly notify your practice administrator, hospital risk manager, or the designated in-office person. You should also notify your malpractice insurance carrier.

Once the carrier has been advised of the suit, it will open a claim, collect preliminary information, and assign a defense attorney to represent your interests. The defense attorney will be your primary point of contact during the life of the lawsuit.

The defense attorney, working with the carrier, will collect data to assess the merits of the plaintiff’s claims. On the basis of the gathered information, the insurer will set a “reserve amount,” which is money that is earmarked for the eventual claim payment.

Throughout the litigation of the lawsuit, you will consult with your defense attorney and the carrier to determine how best to proceed. If your policy has a “consent to settle” provision, the carrier must obtain your consent before it can settle the claim.

If a pretrial settlement is pursued and an agreement is reached with the plaintiff, the plaintiff is paid the agreed-upon sum, in exchange for a release of all claims and a dismissal of the lawsuit.

If the case goes to trial, a jury will determine whether to render a defense verdict in your favor, or a verdict for the plaintiff. If the latter, the jury can award a monetary judgment that is typically paid by the insurance company. When the judgment is paid and satisfied, the claim is closed.

Malpractice claims that do not settle pre-trial generally take 18 to 36 months from the date suit is filed to reach trial; however, in some states, it can take 5 years or more.

Tip: Be proactive after an incident or adverse event – contact your practice administrator and malpractice carrier even if you have not yet received a formal claim notice. Most malpractice insurance companies have risk management programs in place and can provide guidance and suggestions on some immediate steps that you can take after an incident occurs. It may be possible to avoid further escalation of an issue if it is dealt with promptly and with the guidance of your insurance carrier and legal counsel.