What Is the First Step in Pursuing a Medical Malpractice Claim?

September 27, 2022

One of your earliest steps would be to get a personal injury lawyer to handle your case. However, your true first step in pursuing a medical malpractice claim is to gather evidence that shows malpractice occurred and you suffered injuries. You will need to have clear evidence to show a medical malpractice lawyer so they can determine the strength of your claim and take on your case.

There are other important early steps in the process of pursuing a medical malpractice claim that you or your legal team may complete concurrently. Contact our firm today for a confidential review of your case.

Gather Evidence That Demonstrates Malpractice

The first step you should take is to gather initial evidence that shows a doctor, nurse, or other medical professional committed medical malpractice, causing injuries to you or your loved one. Some initial evidence you might collect and present to a Las Vegas personal injury attorney include:

Medical records showing the doctor’s or medical team’s alleged error
Medical records of treatment for adverse effects of the alleged error with a different medical professional, confirming potential malpractice
Medical records of a second opinion after being treated unsuccessfully for a potential misdiagnosis with another medical professional, confirming potential malpractice
Photo or video evidence of injury
Photos or videos of malpractice occurring
Witness statements on the alleged malpractice or medical error

Second Opinion After Unsuccessful Treatment

A practitioner may diagnose you with a certain condition and give you treatment that doesn’t work, letting the real condition get worse. Or they may give you a treatment that makes your condition worse, causing serious injury.

If this happens, you may consider getting a second opinion from a different practitioner, either in the same specialty or a different specialty that may have answers on your actual condition.

But just because a second opinion is different than what the initial doctor said doesn’t mean that malpractice occurred. If a doctor tries a treatment or medication that doesn’t work and has adverse effects on your or your health also doesn’t always indicate malpractice.

The key to using second opinions as a basis for a medical malpractice claim is to demonstrate that the initial practitioner was negligent in their diagnosis or in prescribing you medication.

Unusual Symptoms After Treatment or Testing

If you experience pain, infection, or another issue after treatment or a procedure, you should seek medical attention right away. This may mean going back to the same doctor that initially treated you, going to your regular primary care physician, or even going to urgent care. This step can help you identify a medical error if one occurred.

However, having adverse reactions to treatment, getting an infection after surgery, or suffering an injury after treatment doesn’t always indicate medical malpractice. Many doctors do their due diligence to avoid dangerous medication interactions, allergic reactions, bruising, and other injuries.

Those who are found medically negligent fail to notice harmful interactions between competing medications, identify existing allergies, or use safe, careful techniques when using medical equipment.

Determine When the Malpractice Occurred

The statute of limitations provides a general timeframe for personal injury victims to file a claim against negligent parties that injured them. In Nevada, you generally have three years from the date of the injury to file a medical malpractice claim, according to NRS § 41A.097(2).

There’s also a stipulation that victims may have just one year from the date they discover their injury (or from the date they should have discovered the injury through “reasonable diligence”). The state would enforce whichever incident occurs first.

For example, if you discover your injury one year after the malpractice took place, you would likely have just one year from the date you first observed your injury to file your claim.

If you miss the statute of limitations for your medical malpractice injury, you may lose your right to pursue compensation and hold the negligent medical professionals accountable for their actions. That’s why it’s important to seek medical attention for adverse effects of treatment and second opinions as soon as possible to identify any possible medical malpractice injuries.

Talk to the Practitioner Responsible

You can file a complaint with the practitioner through their employing facility (the hospital or practice where they work) or contact them directly about your medical malpractice claim. Speaking with the practitioner and their employer may speed up the process of resolving the claim out of court.

When you file this complaint or bring up the issue of malpractice with the practitioner, you should provide evidence from your medical records and/or second opinions. Explain what mistake was made, how it injured you, and what you expect in return.

A lawyer can help convince the medical practitioner to take your claim seriously. We can help you determine the most effective approach to this step or whether this step is even relevant.

Note that this step doesn’t initiate a formal legal complaint in the court — you must do that separately if this approach does not provide a resolution.

Notify the Relevant Medical Board

In addition to (or instead of) filing a complaint with the practitioner and their employer directly, you can also file a formal complaint with the relevant state medical board. You should provide the same types and quality of evidence that you would give the practitioner or a court to strengthen your claim. The board can investigate your claim and take any disciplinary action against the practitioner as they see fit.

This step also does not initiate any actual legal claim to recover compensation.

Get an Affidavit of Merit

In most states, you’re required to get another medical professional in the same specialty to verify your claim. In Nevada, this is known as an affidavit of merit.

This statement must:

Include the medical malpractice claims listed in the legal complaint
List the names of all medical practitioners involved in the alleged malpractice
Demonstrate what the standard of care is for a medical professional with the same type and level of experience
Explain what the malpractice or errors were that fell below the acceptable standard of care

This document validates that a practitioner (or team of medical professionals) was medically negligent in your case and that this negligence caused your injuries. This affidavit of merit must demonstrate that the injuries were not a standard, unavoidable result of your condition.

If you do not file an affidavit of merit or the one you submit is not sufficient, the court may dismiss the case “without prejudice.” That means you may have another opportunity to include the affidavit or make sure it is thorough and accurate.

Calculate Your Damages

The next step in pursuing a medical malpractice claim is to calculate the damages you’ve sustained from the medical negligence. You may be eligible to recover both economic and non-economic damages, including:

Medical expenses
Travel expenses for malpractice-related care
Lost income and benefits
Pain and suffering
Disability, disfigurement, and scarring
Diminished quality of life
Mobility issues
Inability to partake in hobbies

You can calculate your own damages by reviewing outstanding medical bills, adding up your out-of-pocket medical costs, and going over your healthcare insurance claims. You can determine lost income by calculating the number of paychecks you’ve missed since you’ve been out of work.

In Nevada, there is no cap on how much you can recover for economic damages, those with a clear monetary value. But the state does cap the amount of non-economic damages, like pain and suffering, at $350,000 (NRS 41A.035).

How a Medical Malpractice Lawyer Can Help

While the first step on your own would be to gather initial evidence that you were the victim of medical malpractice, your next step could be to hire a medical malpractice lawyer Las Vegas to handle the rest of the work. Your lawyer can:

Determine the strength of your claim and explore all your legal options for recovering much-needed compensation.
Collect additional evidence to support your claim.
Identify a medical professional to write an affidavit of merit.
File all complaints with the practitioner, their employer, and the state medical board.
Handle all communications with the defendant and the insurance company.
Calculate all your damages to give you a comprehensive settlement figure.
Negotiate a settlement or represent you in court.

De Castroverde Accident & Injury Lawyers Is Here for You

At De Castroverde Accident & Injury Lawyers, our Las Vegas personal injury attorneys can review your medical malpractice case. We’re dedicated to helping victims of medical negligence and their families get the justice and compensation they deserve. Contact our office today to schedule your confidential case evaluation and take the first step in pursuing your medical malpractice claim.