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Medical Malpractice

Medical Malpractice Laws by State

— September 20, 2021

Twenty-two states make it mandatory for plaintiffs to obtain an expert’s testimony through an affidavit or certificate of merit before filing a medical malpractice lawsuit.

Medical malpractice laws govern the conduct of healthcare professionals and institutions. Like many other statutes we encounter daily, each state enacts and regulates its medical malpractice laws. Each state’s laws are unique, but the general principles are consistent. If you have a potential medical malpractice lawsuit, it is crucial to understand the state law concerning such suits.

Consider all the aspects of the law before filing the suit. Be particular about the clauses that affect the validity, legal strategy, and path of your lawsuit. Here are some of these clauses, what they mean, and how they differ among states. 

Statute of limitation for lawsuits

If you have a potential medical malpractice lawsuit, your memory should be at its best. You should be able to remember when and where it happened. The admissibility of the suit hangs on a clock. 

The statute of limitation imposes a time limit on when a plaintiff can file a medical malpractice lawsuit. Your clock will typically start ticking from the time you discover the injury or malpractice. Although each state has its caps, generally, the range is between one and three years. Once this time has elapsed, you can be almost sure that no one will consider your medical malpractice suit. However, each state has more laws that describe the exceptions and nuances defining the filing deadline. 

Reach out to a qualified lawyer from the jurisdiction where the malpractice happened and learn more about the statute of limitations for lawsuits in that particular state.

Laws imposing limitations or caps monetary damages

Many states have passed laws imposing limitations or setting caps on the value of damages a plaintiff in a medical malpractice case can receive. Such limits often apply to non-economic and intangible damages such as pain and suffering. For example, in Alaska, SB 67 of 2005 capped compensation for non-economic damages to $250,000 for wrongful death or injury resulting in over 70% disability. In severe permanent disability, damages the law caps damages at $400,000. 

In most cases where the caps exist, they are not applicable for cases of intentional misconduct, reckless behavior, and omissions. Many states that adopted caps for monetary damages did so after intense lobbying by insurance companies. However, there are instances where such laws were declared unconstitutional. For example, in the year 2017, the Florida Supreme Court declared such laws unconstitutional. 

Rules on requirements and path of the malpractice lawsuit 

Twenty-two states make it mandatory for plaintiffs to obtain an expert’s testimony through an affidavit or certificate of merit before filing a medical malpractice lawsuit. Twenty-seven states require parties to go through alternative dispute resolution mechanisms such as arbitration and mediation first. In seventeen states, the suit will go through a screening panel or medical board. The screening panel will then reject the lawsuit or give it a nod for a court hearing.

Such requirements, which vary by location, will affect the path and possibly the outcome of a potential medical malpractice lawsuit.

Laws concerning admissible evidence

There are instances where doctors or other medical professionals make statements to express sympathy, concern, or apologize for errors made during treatment. Previously, such utterances were, in some cases, considered “an admission of fault.” Thus, plaintiffs included them in the evidence. However, due to reforms in the legal sector, 36 states enacted laws to regulate the admissibility of such statements in medical malpractice cases. In many of these states, such evidence is inadmissible.

Statutes concerning joint and several liabilities

The legal principle of vicarious liability in tort defines rules of establishing responsibility. A defendant can be liable for the torts committed by another due to their relationship. Statutes on joint and several liability come into play where several parties are jointly and severally liable for an act that results in tort. Each party can be held liable to the full extent of the injuries. If a plaintiff wins a suit, the plaintiff can collect the entire value of damages awarded from any of the defendants. The recent ruling against Cardinal Health, McKesson, and AmerisourceBergen is an excellent example of how this rule can apply.

Image by Olga Guryanova, via
Image by Olga Guryanova, via

The laws on joint and several liabilities vary from state to state. They can affect the legal strategy and path of your suit. 

More than half of the states (27) permit joint and several liability in medical malpractice lawsuits. Whereas some have it open, others (like California) have modified joint liability, while others have modified several liability. For example, in the District of Columbia (Washington D.C.), the law permits joint and several liability for compensatory damages. But, it allows several liability for punitive damages only.

Medical malpractice laws by state, the bottom line

Several other issues and factors, specific to state law, can affect the strategy, path, and outcome of medical malpractice lawsuits. If you have a potential medical malpractice lawsuit, ensure that you get counsel from a qualified lawyer. The lawyers should be familiar with all the nitty-gritty of medical malpractice laws of the specific jurisdiction. 

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