How to Sue for Medical Malpractice: Steps and Deadlines
How to sue for medical malpractice: the four elements, pre-suit notice and expert rules by state, deadlines, damage caps and lawyer fee limits.
You sue for medical malpractice by proving, with a qualified medical expert, that a provider broke the standard of care and caused the harm. Many states also require a pre-suit step before you file. That step can be a notice of intent, a certificate of merit or an expert report. The lawsuit must then be filed before your state's malpractice deadline.
The provider can be a doctor, a nurse, or licensed staff at a home health agency or nursing home. Harm caused by a non-medical aide is often treated as ordinary negligence instead.
How to Sue for Medical Malpractice, Step by Step
The steps below run from collecting records to filing before the state deadline.
- Get the records. Request the patient's medical and hospital records. For care from a nursing home or home health agency, also request the care plan, shift logs, medication records and incident reports.
- Have a medical expert review the care. A qualified medical expert reads the records and says whether the provider broke the accepted standard of care. The expert also addresses whether that breach caused the injury. Almost every malpractice case needs this testimony.
- Name everyone who may be liable. An employer is generally liable for negligence by its employees acting within the scope of their employment. The employer can also be directly liable for negligent hiring, training, supervision or retention.
- Complete your state's pre-suit step. California requires 90 days' notice of intent to sue a health care provider. Texas requires an expert report within 120 days after each defendant's original answer is filed. Florida and New York have their own rules.
- File before the deadline. In California, the deadline is 3 years from the injury or 1 year from when the injury was or should have been discovered, whichever comes first. In New York, it is 2 years and 6 months.
- Document the losses. Keep medical bills, records of lost wages and photos of injuries. Damages are one of the four elements the patient must prove.
Lawyers who handle malpractice cases usually work on a contingency fee, so the patient pays no fee if there is no recovery.
This route does not fit every case of harm by a caregiver. A fall during missed supervision by a non-medical aide is often ordinary negligence. For that kind of claim, read the guide to suing a home care agency for negligence.
The Four Elements of a Medical Malpractice Lawsuit
A medical malpractice lawsuit must prove four elements: duty, breach of the standard of care, causation and damages. These are the four elements of any negligence claim. In a malpractice case, they apply to a health care provider.
| Element | What It Means | Common Proof |
|---|---|---|
| Duty | The provider owed the patient a duty of care. | Medical and hospital records |
| Breach | The provider fell below the accepted standard of care. | Testimony from a qualified medical expert |
| Causation | The breach caused the injury. | Expert testimony linking the breach to the injury |
| Damages | The patient suffered losses. | Medical bills, lost wage records, photos of injuries |
Breach and causation are separate questions. A provider can fall below the standard of care without causing the injury. In that case, the claim fails on causation.
A broken safety rule can help prove breach. In many states, violating a safety statute or regulation meant to protect people like the patient can establish breach or serve as evidence of it. How much weight a violation carries varies by state.
One example comes from the Code of Federal Regulations (C.F.R.). Under 42 C.F.R. § 483.25(b)(1), certified nursing homes must prevent pressure ulcers unless they are clinically unavoidable.
Pre-Suit Steps Required Before You Sue for Medical Malpractice
Many states require a formal step before or early in a medical malpractice lawsuit. The step differs by state. The table shows four examples.
| State | Required Step | Statute |
|---|---|---|
| California | Give the health care provider 90 days' notice of intent to sue | Cal. Code Civ. Proc. § 364 |
| Florida | Complete a pre-suit investigation and serve a notice of intent; the provider has a 90-day period to respond | Fla. Stat. § 766.106 |
| New York | Provide a certificate of merit from the plaintiff's attorney | N.Y. CPLR § 3012-a |
| Texas | Serve an expert report within 120 days after each defendant's original answer is filed | Tex. Civ. Prac. & Rem. Code § 74.351 |
The Texas clock runs separately for each defendant. If a defendant's original answer is filed on June 1, the 120 days end on September 29. A second defendant who answers later starts a second 120-day clock.
The California notice also takes planning. A notice of intent served on March 1 runs its 90 days through May 30. Build that wait into the plan so the lawsuit can still be filed on time.
Other states set their own pre-suit rules.
Medical Malpractice Statute of Limitations
A state's medical malpractice statute of limitations can differ from its deadline for ordinary injury claims. California uses two clocks under Cal. Code Civ. Proc. § 340.5. The deadline is 3 years from the injury or 1 year from when the injury was or should have been discovered, whichever comes first.
Suppose an injury happens on March 1, 2024, and the patient discovers it on June 1, 2024. The 1-year clock ends June 1, 2025. That is earlier than the 3-year limit of March 1, 2027, so June 1, 2025 controls.
New York allows 2 years and 6 months under N.Y. CPLR § 214-a. Other states set different periods.
Some situations change the deadline:
- Government providers: If the defendant is a government body, a notice of claim may be due within months. Read how a notice of claim works.
- Federal employees: If a federal employee was involved, the Federal Tort Claims Act (FTCA) requires an administrative claim within two years after the claim accrues.
- Discovery and minors: Some states apply a discovery rule or pause (toll) the deadline for minors. These rules vary by state.
- Deaths: When malpractice causes a death, state malpractice limitation rules may apply to the death claim.
For death cases, compare the wrongful death statute of limitations by state.
Damage Caps in Malpractice Cases
Some states cap noneconomic damages in malpractice cases. Other states have different caps or none. Some state courts have struck caps down.
| State and Case Type | Noneconomic Damages Cap | Source |
|---|---|---|
| Texas, claims against physicians | $250,000 per claimant | Tex. Civ. Prac. & Rem. Code § 74.301 |
| California, injury cases | $350,000 starting in 2023, rising each January until it reaches $750,000 | MICRA, as changed by AB 35 (2022) |
| California, death cases | $500,000 starting in 2023, rising each January until it reaches $1,000,000 | MICRA, as changed by AB 35 (2022) |
A cap changes the math on a large award. Using the 2023 California figure, a hypothetical $900,000 noneconomic damages award in an injury case would drop to $350,000.
Lawyer Fees in Malpractice Cases
Malpractice lawyers usually charge a contingency fee, which is a percentage of the recovery with no fee if there is no recovery. The percentage is set in a written fee agreement and is negotiable. Some states cap malpractice fees by law.
California caps the fee at 25% if the case settles before a lawsuit is filed and 33% after (Cal. Bus. & Prof. Code § 6146). On a $200,000 recovery, that means $50,000 before suit or $66,000 after.
New York uses a sliding scale under N.Y. Judiciary Law § 474-a.
| Portion of the Recovery | Maximum Rate | Maximum Fee on That Portion |
|---|---|---|
| First $250,000 | 30% | $75,000 |
| Next $250,000 | 25% | $62,500 |
| Next $500,000 | 20% | $100,000 |
| Next $250,000 | 15% | $37,500 |
| Above $1,250,000 | 10% | 10% of the amount above $1,250,000 |
On a $500,000 recovery in New York, the maximum fee is $75,000 plus $62,500. That totals $137,500.
Case Costs and the Fee
Case costs are separate from the fee. These include filing fees, medical records, expert witnesses and depositions. The fee agreement should say whether costs come out before or after the fee is calculated.
Take a hypothetical $300,000 recovery with $30,000 in costs and a 33% fee. If the fee comes from the full amount, the fee is $99,000 and the client keeps $171,000. If costs come out first, the fee is $89,100 and the client keeps $180,900.
Read more about how a contingency fee agreement works.
Questions to Ask a Malpractice Lawyer
- How many cases like this have you handled?
- Who will work on the case?
- What is the fee percentage, and how are costs handled?
- Does the client owe costs if the case is lost?
- Will you file suit if needed?
- How will you communicate with me?
You can describe what happened and get matched with a lawyer who handles medical malpractice cases, free and with no obligation to hire.
Malpractice in Home Health and Nursing Homes
Whether harm in home health care or a nursing home counts as medical malpractice depends on state law. It also depends on whether the harm came from professional medical judgment by a licensed health care provider.
Home Health and Home Care
"Home health" means skilled care, such as nursing or therapy, usually ordered by a doctor. Home health agencies certified by Medicare must meet federal Conditions of Participation in 42 C.F.R. Part 484. "Home care" or "personal care" usually means non-medical help.
That non-medical help covers bathing, meals, supervision and medication reminders. Medication decisions or nursing care by licensed staff may fall under the state's malpractice rules. Missed supervision, a fall or neglect by a non-medical aide is often ordinary negligence.
Licensing can matter in non-medical cases. Some states license or register non-medical home care agencies and their aides, and other states do not. Operating without a required license violates state law and can be used as evidence in a negligence case.
An unlicensed operator may also lack liability insurance. That can make collecting a judgment harder. The guide to home care agency negligence covers these claims.
Nursing Homes
Nursing homes that take Medicare or Medicaid must meet federal requirements in 42 C.F.R. Part 483. Those rules require the nursing home to keep residents free from abuse and neglect (42 C.F.R. § 483.12). State health departments inspect nursing homes, and inspection results and deficiency citations appear on Medicare's Care Compare.
Common signs of neglect include pressure ulcers (bedsores), unexplained falls or fractures, dehydration, malnutrition or weight loss, poor hygiene, medication errors and untreated infections. Learn how a nursing home neglect lawsuit works.
A nursing home that takes Medicare or Medicaid cannot require a resident to sign an arbitration agreement as a condition of admission (42 C.F.R. § 483.70). A resident can rescind a signed arbitration agreement within 30 calendar days. Agreements signed under older terms, or with assisted living facilities, may still be enforced depending on the document and state law.
California Elder Abuse Claims
California's Elder Abuse and Dependent Adult Civil Protection Act covers neglect of a California resident age 65 or older. The plaintiff may prove neglect by clear and convincing evidence and show the defendant acted with recklessness, oppression, fraud or malice. If so, the court awards reasonable attorney fees and costs (Cal. Welf. & Inst. Code § 15657).
In that situation, the pain-and-suffering limit that normally applies after a victim's death does not apply.
If an older adult is in immediate danger, call 911. Adult Protective Services (APS) investigates abuse and neglect, and the Eldercare Locator (1-800-677-1116) connects callers to local agencies, including APS. Read how to report elder abuse for the steps.
When Malpractice Causes a Death
When medical malpractice causes a death, two claims are possible: a wrongful death claim and a survival action. A wrongful death claim requires the malpractice elements plus proof that the breach caused the death. It is a civil case, separate from any criminal case.
A wrongful death claim can be brought whether or not anyone is charged. It usually uses a preponderance of the evidence standard.
Who files depends on the state. In New York, the personal representative of the estate files for the family's benefit (EPTL § 5-4.1). California lets the spouse or domestic partner, children and others who would inherit under intestacy file (Cal. Code Civ. Proc. § 377.60).
Texas allows the spouse, children and parents to file (Tex. Civ. Prac. & Rem. Code § 71.004). If none of them files within three months of the death, the executor or administrator may file. That does not apply if all of those family members ask that no suit be brought.
A survival action is the patient's own claim, brought by the estate's personal representative. It covers losses before death, such as medical bills and lost wages between injury and death, and in some states pain and suffering. Survival money goes to the estate, while wrongful death money goes to the family members the statute names.
Wrongful death damages commonly include lost financial support, household services, and medical and funeral expenses. Many states also allow loss of companionship, care and guidance. New York limits recovery to economic losses (EPTL § 5-4.3).
Compensatory damages for physical injury or wrongful death are generally excluded from federal income tax under 26 U.S.C. § 104(a)(2). Punitive damages and interest are generally taxable. Internal Revenue Service (IRS) Publication 4345 covers settlement taxes, as does the guide on whether settlements are taxable.
Compare wrongful death and medical malpractice claims, and read how a survival action differs from a wrongful death claim. The wrongful death guide covers the full process.
Frequently Asked Questions
What are the four things that must be proven to win a medical malpractice suit?
The patient must prove duty, breach, causation and damages. The provider owed the patient a duty, broke the accepted standard of care, and that breach caused an injury that led to damages. Almost every case needs a qualified medical expert to testify about the standard of care and causation.
What are 5 examples of medical negligence?
Medical negligence is a breach of the accepted standard of care that injures a patient. In nursing home and home health care, common signs include pressure ulcers that were not clinically unavoidable, unexplained falls or fractures, dehydration or malnutrition, medication errors, and untreated infections. Whether each one counts as malpractice or ordinary negligence depends on state law and on whether a licensed provider's medical judgment caused the harm.
Is it worth suing for medical malpractice?
A noneconomic damages cap, such as Texas's $250,000 per claimant against physicians, can limit the recovery. Lawyers who handle malpractice cases usually work on contingency. There is no fee if there is no recovery. Case costs such as expert witnesses are separate from the fee.
What are the odds of winning a medical malpractice lawsuit?
The outcome turns on whether a qualified medical expert can show that the provider broke the standard of care and that the breach caused the injury. The case must also be filed before the state's malpractice deadline.
What's the average malpractice settlement amount?
No official national database tracks wrongful death settlement amounts, so any average for a death case is an estimate from a limited sample. Value depends on the strength of the proof on fault, available insurance and assets, and state caps, as the guide to wrongful death settlement amounts explains.
How long do you have to sue for medical malpractice?
The deadline depends on the state. California allows 3 years from the injury or 1 year from when the injury was or should have been discovered, whichever comes first. New York allows 2 years and 6 months. Claims against a government body or involving a federal employee can have different deadlines, including a notice of claim due within months.
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