Talking About Personal Injury Cases

Posted on: 3 February 2016

If you've recently been injured or made ill through a medical professional's negligence, you may already be considering your legal options -- including filing a malpractice lawsuit. However, even if you have a clear set of facts pointing toward liability, affixing blame on the wrong person (or entity) can cause your case to be dismissed; and depending upon the amount of time that has elapsed since your injury, you may be prevented from refiling against the correct person. Read on to learn more about the factors you'll want to consider when naming various doctors, nurses, and other medical staff in your malpractice lawsuit.

Who can you sue for malpractice?

In a professional setting (like medicine, law, or finance), malpractice is broadly defined as the breach of the professional's duty of care -- physical, legal, or fiduciary. In the medical realm, an action (or inaction) constitutes malpractice if it falls below the accepted standard of care and results in injury or death. 

It can be fairly easy to determine who to sue in some cases. If your injury resulted from a nurse who ignored a notation on your chart and administered a medicine to which you're allergic, or a surgeon who didn't get enough sleep the previous night and nicked an artery during a routine operation, you'll likely be able to prevail in court by naming only the person who took decisive action leading to injury as defendants. 

But in other situations, liability can be less clear-cut, and you may find it difficult to pin down one (or more) responsible parties or determine how blame should be apportioned. This is especially true when the malpractice claim is based not on action, but inaction. Should you sue the nurse who was too busy talking to her coworkers to promptly respond to your requests for assistance, the doctor who should have known (based on your vital signs) that you were suffering from internal bleeding, or both? Often, the answer will depend on the facts at hand.

What should you consider when deciding who to name as a defendant in your lawsuit? 

Even after you've come up with an individual (or group) who could potentially be named in your medical malpractice lawsuit, there are some legal and logistical factors you'll want to consider before filing. As a general rule, it's safer to cast a wider net of potential defendants, as it both increases your odds of being able to collect any monetary judgment awarded and decreases the chance that your claim will be dismissed if it's found that a single named defendant was not sufficiently involved in your care to generate a malpractice complaint.

Your first step may be to evaluate each potential defendant's financial solvency. Although you'll be able to seek detailed, specific financial information from each defendant only after a lawsuit has been filed and the discovery process has commenced, you may be able to determine whether a certain doctor or nurse is essentially judgment-proof due to non-dischargeable debt, doesn't carry malpractice insurance, or is otherwise unlikely to ever satisfy a monetary judgment levied on your behalf. If this is the case, you'll want to ensure you add as many additional potential defendants as possible to prevent you from winning an uncollectible judgment. 

You may also want to investigate whether any of the potential defendants have been sued for malpractice in the past. While previous lawsuits or judgments may not be able to help you prove that medical malpractice occurred in your case, these can help you secure punitive damages if they can be viewed as demonstrating the physician's pattern or practice of negligent behavior.