Medical Malpractice Lawsuits: Stages and What to Expect if You’re Sued
- Nisha Mehta, MD
- Jul 2
- 7 min read
Lawsuits are complex, lengthy processes that can last months, if not years, even if they never make it to trial. Being named in a lawsuit is a stressful situation for any physician to face, regardless of whether or not they did something wrong. Understanding what to expect if you’re sued can help you better prepare for this unfortunate situation. As part of our series on medical malpractice lawsuits, we breakdown the various stages of a medical malpractice lawsuit below.
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Why Do Physicians Get Sued?
Anybody can bring a lawsuit for any reason, regardless of whether it has grounds or is winnable. Lawsuits aren’t always about obvious mistakes or gross negligence. Many malpractice suits arise either from poor patient outcomes (which are not necessarily the fault of the physician or facility) or poor communication. Surgical complications, misdiagnosed conditions, or treatment failures can lead a patient – or a patient’s family – to sue. A patient may even file a lawsuit because they didn’t recover as quickly or well as they expected (even if those expectations were unrealistic to begin with).
What Is the Likelihood of Facing a Medical Malpractice Suit?
Malpractice lawsuits are unfortunately relatively common for doctors. According to the AMA, almost 1 in 3 physicians will face a malpractice suit at some point during their career.
While these numbers are high, most malpractice lawsuits don’t actually go to trial. The majority are dismissed or the case is dropped because there is no grounds for which the suit to go forward or there is settlement between the two parties.
Lawsuits that do go to trial statistically are usually found in favor of the physician being sued. And even if a case makes it to trial and the verdict is against you, there are still several other steps that need to happen before you have to pay out of pocket for a lawsuit judgement. (This assumes you have good malpractice insurance, which you should have. If you don’t, visit our medical malpractice insurance page for resources to shop and secure coverage.)
Learn more about how likely a physician is to be successfully sued past policy limits.
When facing a potential lawsuit, however, the likelihood of it getting dismissed likely brings little to no comfort in the moment. It can help to understand the process when facing a malpractice lawsuit so you can prepare as best as possible.
The Stages of a Medical Malpractice Lawsuit
Medical malpractice lawsuits are often lengthy and complex, even if they don’t ultimately go to trial. They can take months or even years to resolve. Understanding the process can help you prepare for what to expect and ensure you’re ready to respond timely and effectively to help avoid any delays or consequences for missing deadlines.
Before you even hear about the lawsuit, the patient will likely meet with their own counsel, who will hear the grounds of the case and advise the patient on whether they have a case. The only hint that you may have that this is happening if the patient does not tell you that they plan on suing you is that the patient may request medical records from the practice to be sent to their attorney or for themselves to bring to their attorney.
After that, these are the typical steps:
The patient may file a notice of intent. In some states, a notice of intent must be filed before an actual lawsuit. The notice of intent contains basic information about the alleged malpractice they are building their claim upon, as well as the nature of the injuries sustained. This is a formal, legal letter, but is not an actual lawsuit. You may be able to resolve the issue at this stage before you are sued. It’s important to inform your malpractice carrier, or employer, even at this stage.
Patient files a lawsuit (complaint). The patient, or likely their attorney, formally files a complaint that names you as a defendant in their malpractice case. A complaint is the legal term for a lawsuit. This complaint will outline their allegations against you, as well as the damages they’re claiming (similar to a notice of intent).
The courts issue a summons. Once the patient’s attorney files a complaint, the court issues a summons, which is the legal notification you’ll receive that you’re being sued.
You need to alert your employer or malpractice insurance carrier. If you’re employed by a group or institution, you likely have an obligation to notify them, and they will notify the malpractice insurance carrier to file a claim on your behalf. If you’re in private practice or self-employed, call your malpractice insurance carrier and notify them of the situation. Provide them with all relevant documents to the case, including: the complaint, the summons, and any correspondence related to the case.
You will be assigned legal representation. Once alerted, your malpractice carrier will assign you a defense attorney to represent you for the case. Your attorney will be your primary point of contact and will review your case, advise you, and handle all legal communications with the patient, their attorney, and the legal system.
You meet with your attorney to decide your response. After reviewing the case together, you and your attorney will make a decision about how to respond. You may deny or contest the allegations, or admit to them. You may also file a counterclaim or a motion to dismiss the lawsuit if you think it’s unwarranted or an invalid claim.
The lawsuit enters the discovery phase. Assuming the lawsuit goes forward, this is often the longest part of the process, often lasting 6-18 months. Both your attorney and the patient’s attorney will be requesting documents and conducting depositions of witnesses, experts, and other parties related to the case. You will work closely with your attorney, who will not only be deposing others to help build your defense, but will help prepare you for your deposition by the opposing counsel. You can review our general deposition tips on our article about deposition tips for physician expert witnesses. (Not everything in this article will apply in this situation as it was written for expert witnesses, but we include below as the general concepts may still be helpful.)
Motions or pre-trial hearings may occur. Your attorney may file a motion to dismiss the case before it ever gets past the discovery and pre-trial stage. Other motions and hearings can also occur to limit what evidence found during discovery can be admitted, if the case proceeds to trial.
Settlement negotiations may occur. Most malpractice cases are settled before a case goes to trial, though it can still be a year or two before a case reaches a settlement agreement. Either side may approach the other with a settlement offer, or there may be an agreement to enter mediation or arbitration to try to avoid going to trial. A settlement does not always imply an admission of guilt, but it’s important to understand any implications of reaching a settlement agreement (you’re under no obligation to agree to any proposed settlements). Your defense attorney will handle negotiations, but you will be involved in the decision making process.
Case proceeds to trial. If a judge does not dismiss your case and you do not reach a settlement agreement with the opposing counsel and patient, the case will then go to trial. A trial date is often scheduled several weeks or months after finishing the discovery phase. The trial itself typically lasts several days to several weeks. During the trial, the patient’s attorney and your attorney will make their arguments for the case, will present related evidence, and testimonies will be given, including testimonies by you, the patient, and expert witnesses.
Verdict and appeals. Once the trial concludes, a verdict is reached. Even if the ruling comes out against you, there are post-trial options, such as an appeal, open to both parties. Appeals can extend for months as well.
Collection of damages, if lawsuit is against you.
What Comes Next When Facing a Malpractice Lawsuit?
If you’ve just been served a summons for a complaint a patient has filed, it’s important to know how best to proceed throughout each of the steps outlined above. We’ve compiled a list of what to do (and avoid) when you receive notice that a patient is suing you to help you navigate to help. As noted above, the first step is to notify either your employer or your malpractice insurance carrier and make sure an attorney is assigned to your case. Your attorney will be your main point of contact for all things related to the lawsuit, and will be your best resource and guidance throughout the process.
Related Medical Malpractice Resources for Physicians
If you’re facing a lawsuit or potential lawsuit, we hope the additional resources below can help. If you have questions on topics we haven’t covered yet, reach out to the hive mind in our online physician community.
Explore our medical malpractice lawsuit series:
What are the steps of a medical malpractice lawsuit (current article)
What to do (and don't do) if you have been sued in a medical malpractice lawsuit
Additional related resources: