Malpractice Insurance

Surgery errors are some of the most common types of medical malpractice lawsuits in the U.S. If the surgical injury or death could have been avoided, or was a result of negligence or inattention, the injured party has the legal right to sue for monetary damages.

The short answer is, yes, you can, since most states give you two to three years to bring a claim after malpractice occurs. The longer answer is, it depends on the type of injury and the state in which the claim is brought.

The four Ds of medical malpractice are duty, dereliction (negligence or deviation from the standard of care), damages, and direct cause. Each of these four elements must be proved to have been present, based on a preponderance of the evidence, for malpractice to be found.

The doctor must have been negligent in connection with your diagnosis or treatment. To sue for malpractice, you must be able to show that the doctor caused you harm in a way that a competent doctor, under the same circumstances, would not have.

Every medical malpractice case is subject to a statute of limitations a period of time in which a plaintiff is allowed to file his or her claim in court. Depending upon the type of case and state where the lawsuit is being filed, this time limit can be as short as a year or two, or as long as ten years.

You may be able to sue a surgeon for failing to warn you of the risks of a procedure. For instance, you may have had back surgery only to come out of it with the same pain you had prior to the surgery; however, if the doctor informed you of this possibility, then you wouldn't be able to sue him for medical malpractice.

In California, patients must sue for surgical malpractice within three years of the date of the surgery or within a year of discovering the surgical malpractice, whichever happens sooner.

You generally have between two to six years to sue for hospital negligence. This is called the statute of limitations, and it varies by state.