What To Do If A Doctor Commits Malpractice

What to do if a doctor makes a mistake and you suffer harm as a result? Knowing what to do if a doctor commits malpractice may make the difference in whether or not you can obtain compensation later. Here are five key steps to take right away after a medical error:


1. Don’t threaten to file a malpractice claim.

Or even indicate to the doctor that you are considering doing so. That is NOT what to do if a doctor has made a mistake. At least not yet. Threats will not solve your problem. In fact, they could make things worse. Rather, perform the other steps below first.

2. Order all your medical records pertaining to the malpractice.

Note that you have a right to access your medical records. You don’t have to provide a reason. If it makes you feel more comfortable, you can say that you need the records for an appointment with a different doctor.

3. Get a second opinion.

Unless the malpractice is blatantly obvious, such as where a surgeon operates on the wrong body part, get a second medical opinion from a different doctor. Generally, it’s best if the second doctor practices in the same specialty as the first doctor. (An exception might be a case where the specialty of the first doctor was not the correct one to treat your problem).

One purpose of a second opinion is to determine whether medical malpractice occurred. Not every bad medical outcome is medical malpractice. The law does not hold doctors responsible just because medical treatment was ineffective, or even led to a bad result. Rather, a valid medical malpractice claim requires the doctor to have made a mistake. He must have departed from the accepted standard of medical care.

I would not recommend that you tell the second doctor that you believe that the first doctor committed malpractice. Many doctors do not like to get anywhere near a potential malpractice case. It’s better to just describe the problem, the prior treatment, and ask for a second opinion. If, after the second doctor tells you what he thinks, you are still unsure if there was a mistake, you can ask the second doctor if he would have done anything differently. Or you can ask if he agrees with the treatment plan of the first doctor.

In many cases, such questions will elicit a response from the second doctor to the effect that the first doctor made a mistake. If so, also ask the second doctor if the first doctor’s mistake caused whatever problems you are experiencing.

Note that, if the second doctor does not say that the first doctor messed up, that does necessarily mean that no medical malpractice took place. Again, some doctors are just reluctant to criticize their colleagues.

4. Investigate the first doctor’s medical malpractice history.

Research public records concerning the first doctor’s medical malpractice history. Some data regarding doctors’ malpractice history is available from the New Jersey Division of Consumer Affairs. (Ideally, you should always do this before you see a doctor for the first time). Print out the results. This information may be useful in prosecuting any claim.

5. See a medical malpractice lawyer immediately.

Consult with an experienced lawyer who handles medical malpractice cases. (Even if you have not yet taken the above steps). There are deadlines to take legal action. Indeed, some deadlines expire in as little as 90 days after any malpractice. While most cases have deadlines that are longer than that, only a qualified attorney can tell you for sure which deadlines apply to your case.

You may want to bookmark or print this post and keep it for future reference, so you will know what to do if a doctor commits malpractice on you or a family member.

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