How Do I File a Malpractice Lawsuit Against My Ortho Surgeon?


Kimberly Dawn Neumann

Any type of surgery always carries risk. But what happens when things don’t turn out as well as you’d hoped? Are you then automatically eligible to file a medical malpractice lawsuit?

Most of the time, the answer is no. Surgeries gone awry can be horribly distressing. However, people who have experienced bad-but-not-permanently-disfiguring surgeries — like joint replacements or spinal fusions — are not always due settlements. The confusion stems from the fact that most people don’t comprehend what actually constitutes malpractice.

For that reason, it’s important to fully understand what is required for a case to be considered valid before embarking on a malpractice lawsuit.

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What Is Medical Malpractice?

Doctors are human beings. As such, it is unrealistic to expect them to “fix” every ailment without fail 100% of the time. What you can expect, however, is that they will perform their duties with a certain degree of care and professional proficiency.

That is the major distinction in what constitutes a medical malpractice lawsuit. For a claim to be viable, there must be some proof that the doctor did not exercise a proper standard of care. In that case, the claimant can cite negligence as their reason for entering a malpractice lawsuit.

Establishing wrongdoing on the part of a surgeon, doctor, or other healthcare professional can be quite difficult, however. Certain criteria must be met and that is one reason why obtaining a lawyer is vital for these types of cases.

If you think you might still have a claim, however, there are some basic steps you should take.

What Are the Steps Necessary to File a Medical Malpractice Lawsuit?

In order to successfully file a malpractice lawsuit, there are some things you will need to do first.

Step #1: Contact the Medical Professional Who Performed Your Procedure

The first step, if you haven’t already done this, is to talk to your doctor. This will help you to determine what, if anything, might have gone wrong.

This also allows your doctor the opportunity to remedy your condition, if possible. Many doctors will be open to fixing impediments that may have resulted from an operation or other procedure. Before you file a malpractice lawsuit, you should explore this option.

Step #2:  Contact the Medical Licensing Board That Governs This Practitioner

If meeting with the doctor gets you nowhere, consider contacting the relevant medical board that oversees this doctor’s specialty.

For example, if you’re struggling after a knee replacement surgery and think there was potential negligence, try speaking with someone at the American Board of Orthopaedic Surgery (or whatever board licensed your doctor). While the board cannot tell your doctor how to treat or compensate you, it’s good for them to have your report on file. They may also be able to offer advice or information that will help your case as you move forward.

Step #3:  Get a Second Medical Opinion

Part of what you must show in a malpractice lawsuit is that you have sustained significant damages from your injury.

To prove this, you’ll definitely need a second opinion. In fact, many states are now requiring patients to file a certificate of merit signed by an accredited witness before filing a malpractice lawsuit. This certificate ascertains that the injuries sustained are major and likely resulted from negligent actions.

For example, just because a knee replacement surgery failed doesn’t mean that there was negligence involved. Remember, for a malpractice lawsuit to be successful, the patient’s injury must have resulted from a violation of reasonable standards of care.

Litigating medical malpractice cases is very expensive. Unless you have a highly compensable injury directly resulting from provable negligence, filing a malpractice lawsuit may not be worth it.

Step #4: Find Out the Statute Of Limitations For a Malpractice Lawsuit In Your State

No point in going through the hassle of filing a case if you’re beyond the time limits.

The statute of limitations for filing a medical malpractice lawsuit varies widely state by state. All civil claims have time limits by which they must be filed. If you don’t file within this window, you may forfeit your right to recover any compensation for your injuries.

It’s also another good reason to consider a consultation with a malpractice lawyer.

Step #5: Schedule a Free Consultation with a Medical Malpractice Attorney

The step could be swapped with the first step on this list for so many reasons.

As with workers’ comp cases, most medical malpractice lawyers work on a contingency basis. This means that they will only receive payment if you get a settlement. As a result, they’re going to be very honest with you up front about the viability of your case as a malpractice lawsuit. They’re not going to waste their time, or yours, pursuing a claim that lacks merit.

An experienced malpractice attorney will be able to quickly discern the strengths and weaknesses of your case. In other words, if you think there may have been negligence that led to your injury, save yourself time and meet with a qualified medical malpractice attorney right away.

It is extremely rare to win a malpractice lawsuit without an attorney. But if you do have a case, it’s vital to have the right counsel in your corner!

Ready to see if you may qualify? Complete your free online medical malpractice case evaluation now!

Kimberly Dawn Neumann

Kimberly Dawn Neumann is a multi-published NYC-based magazine and book writer whose work has appeared in a wide variety of publications ranging from Forbes to Cosmopolitan. She graduated summa cum laude from the University of Maryland, College of Journalism. For more, visit:, Instagram @dancerscribe, and Twitter @KimberlyNeumann