Who Can File a Medical Malpractice Lawsuit?
Legally Reviewed and Edited by: Terry Cochran
Medical malpractice is a serious issue in the U.S., affecting thousands of people each year. In Michigan, more than 19,000 adverse action reports were filed against healthcare providers, from physicians to dentists, between 2014 and 2024. These numbers highlight the many problems that have put patients’ well-being at risk, despite trusting these professionals to provide the care they need.
When a medical provider is negligent, the injured party has the right to file a compensation claim. But figuring out who can file a medical malpractice lawsuit isn’t always straightforward.
At Cochran, Kroll & Associates, P.C., our medical malpractice attorneys understand the challenges of these complex cases. Need advice? We can help—your first consultation is free. We’ll review your situation and help you explore your legal options.
Definition of Medical Malpractice
Medical malpractice occurs when a healthcare provider fails to meet the standard level of care, leading to harm or injury to a patient. For an incident to be classified as malpractice, there must be proof that the provider didn’t act as a competent professional would, whether by making a mistake or failing to take necessary action.
Not every poor medical outcome qualifies as malpractice. Some procedures naturally come with risks, but malpractice is negligence that falls below the standard of care—not just bad luck.
Take childbirth, for example. In the U.S., the infant mortality rate is 5.60 deaths per 1,000 births, showing that there’s always some risk involved. But if a provider fails to monitor the fetus or treat an infection in the mother, and that leads to a birth injury or death, it could be considered medical malpractice.
Common Examples of Medical Malpractice
Medical malpractice can occur in various forms and often leads to serious consequences for patients. The table below outlines common types of medical malpractice and provides examples:
| Type of Medical Malpractice | Explanation | Specific Example |
| Misdiagnosis or Delayed Diagnosis | When a provider fails to diagnose a condition correctly or delays the diagnosis, leading to harm. | A patient with symptoms of a heart attack is misdiagnosed with indigestion, delaying critical treatment. |
| Surgical Errors | Relates to errors occurring during surgery that cause injury. | Operating on the wrong body part or leaving a surgical tool inside a patient. |
| Medication Errors | Pharmacy negligence or incorrect prescribing or administering of medication. | A patient receives the wrong medication or dosage, causing severe allergic reactions. |
| Anesthesia Errors | Errors in the administration of anesthesia resulting in injury. | Administering too much anesthesia resulting in brain damage. |
| Failure to Treat | Failing to provide appropriate treatment after a correct diagnosis. | A doctor diagnoses an infection but fails to prescribe necessary antibiotics. |
| Birth Injuries | Harm caused to a baby or mother during childbirth due to medical negligence. | Improper use of forceps during delivery, causing injury to the baby. |
| Lack of Informed Consent | When a provider doesn’t fully inform a patient about the risks of a treatment or procedure. | A patient undergoes surgery without being told about potential complications, resulting in unexpected outcomes. |
Who Can File a Medical Malpractice Lawsuit?
Medical malpractice lawsuits allow victims to seek compensation for their losses, including the cost of additional medical care. Certain parties may be eligible to file these lawsuits depending on the injury and the patient’s circumstances.
Injured Patients
Injured patients in Michigan can file a medical malpractice lawsuit against various healthcare providers, including doctors, nurses, hospitals, and dentists. To build a strong case, you’ll need to gather evidence such as medical records, expert testimony, and proof of the provider’s negligence.
In Michigan, you typically have two years from the date of the injury or six months from when the injury was discovered (or reasonably should have been discovered) to file a medical malpractice claim. This is known as the discovery rule.
Acting within this timeframe is crucial to protect your right to seek compensation. However, certain exceptions can apply, so it’s always a good idea to consult with an attorney to confirm specific details related to your case.
Legal Guardians or Representatives
If the injured patient can’t file a medical malpractice lawsuit like in the case of minors or incapacitated adults, a legal guardian or representative can take action for them. Here’s how it works:
- Minors. A parent or legal guardian can file a lawsuit for a child who has suffered medical malpractice. This allows minors to seek compensation even though they cannot legally file a claim themselves. In Michigan, the statute of limitations is generally extended until the minor reaches age 10, providing additional time to file the claim.
- Incapacitated adults. If an adult is unable to manage their own affairs due to physical or mental incapacity, a court-appointed guardian or legal representative can file the lawsuit. This representative acts in the best interest of the incapacitated adult, preserving their rights. The statute of limitations in Michigan may also be tolled (paused) in these cases until a guardian is appointed or the incapacitation is resolved.
Executors on Behalf of a Spouse, Children, or Parents
When a patient tragically dies due to medical malpractice, their surviving family members may pursue a wrongful death claim. In Michigan, the executor or personal representative of the deceased’s estate typically files this lawsuit on behalf of the spouse, children, parents, or other close relatives.
This legal action seeks compensation for the loss of the loved one, covering medical expenses, funeral costs, lost future income, and the emotional pain and suffering the family has endured. The statute of limitations for wrongful death claims in Michigan generally follows the same timeframe as medical malpractice cases, but it’s essential to act quickly to protect your family’s rights and secure the compensation you deserve.
How Do You Establish a Medical Malpractice Claim?
Establishing a medical malpractice claim requires proving several legal elements. You must show the following:
- Doctor-patient relationship. First, you need to prove that there was a formal relationship between you and the healthcare provider. This means the provider agreed to treat you, which creates a duty of care. For instance, that relationship is established when you visit a doctor for a consultation or treatment.
- Breach of standard of care. Next, you need to show that the provider didn’t meet the expected standard of care. This means proving their actions fell short of what a competent professional would have done in the same situation. For example, prescribing the wrong medication.
- Causation and harm. You must also prove that the provider’s mistake caused your injury or worsened your condition. For example, if a surgeon leaves a tool inside you and it leads to an infection, that’s a clear case of causation and harm.
- Damages. Finally, you must show that the harm resulted in measurable damages, such as medical bills, lost wages, or pain and suffering. If you had to miss work for weeks due to a surgical error, that would be part of your damages claim.
What Evidence Do You Need for a Medical Malpractice Claim?
You’ll need solid evidence to support your case if you’re an eligible party who can file a medical malpractice lawsuit. Partner with our experienced team at Cochran, Kroll, & Associates, P.C. to gather what you need, including:
| Type of Evidence | Explanation | Purpose |
| Medical Records | Detailed documentation of the patient’s diagnosis, treatment, and outcomes. | Show what care was provided and where it deviated from the standard. |
| Expert Testimony | Statements from medical professionals regarding the standard of care. | Demonstrate how the provider’s actions fell short of accepted practices. |
| Diagnostic Test Results | X-rays, lab results, or other tests conducted before, during, and after treatment. | Highlight errors in diagnosis or treatment that led to harm. |
| Witness Statements | Testimonies from nurses, other doctors, or staff involved in the patient’s care. | Provide additional perspectives on what occurred during treatment. |
| Proof of Damages | Bills, receipts, and records of lost income or other financial impacts. | Quantify the economic losses resulting from the malpractice. |
| Informed Consent Documentation | Forms showing that the patient was informed of the risks and agreed to the procedure. | Prove whether the patient was properly informed about the risks. |
| Photographs or Visual Evidence | Images showing physical harm or injury caused by malpractice. | To provide visual proof of the injury sustained. |
Do You Need an Expert for a Medical Malpractice Claim?
An expert is essential for a medical malpractice claim and is required by Michigan state law under MCL 600.2169. This law states that a qualified expert must testify to show that the healthcare provider didn’t meet the standard of care. The types of experts we collaborate with can include:
- Medical doctors. Provide insights into the standard of care and how it was breached.
- Nurses. Offer detailed knowledge about nursing practices and patient care.
- Specialists. Experts in specialized areas like surgery, anesthesia, or radiology provide insights into the specific aspects of your case.
- Pharmacologists. Analyze medication errors and their impact on patient health.
- Forensic pathologists. Examine medical records and autopsy results to determine the cause of death in wrongful death cases.
- Economists. Assess the financial impact of injuries, including lost wages and future earning capacity.
- Life care planners. Develop long-term care plans for patients with permanent disabilities due to malpractice.
At Cochran, Kroll, & Associates, P.C., we proudly offer specialized representation with Eileen Kroll, a registered nurse and accomplished partner attorney. Eileen’s unique combination of healthcare and legal experience brings invaluable insights and expertise to medical malpractice cases.
With her dual background in healthcare and law, Eileen collaborates seamlessly with medical experts to build a strong, well-supported case for you. Her dual expertise makes her a powerful advocate for your medical malpractice claim, giving your case the strongest foundation possible.
Damages in a Medical Malpractice Claim: What’s Part of Your Settlement?
When filing a medical malpractice claim, we can help you seek damages as part of your settlement. Here’s a breakdown of what you might recover:
- Medical expenses. This covers the cost of additional treatments, surgeries, hospital stays, medication, physical therapy, and other healthcare needs resulting from the malpractice.
- Lost wages. If your injury caused you to miss work, you can recover the income you lost during that time. These damages also include future lost earnings if the injury affects your ability to work long-term.
- Pain and suffering. Compensation for the physical pain and emotional distress caused by the malpractice. This might cover anxiety, depression, or loss of enjoyment of life.
- Loss of consortium. If the malpractice negatively impacts your relationship with your spouse, you may receive damages for loss of companionship and support.
- Disability or disfigurement. If the malpractice results in permanent disability or visible scarring, we can include compensation for the impact on your appearance and physical abilities.
- Loss of future care. If the injury leads to ongoing medical care or assistance, you can recover the costs associated with future care needs, including in-home care, specialized equipment, or long-term facilities.
- Exemplary damages. In rare cases where the healthcare provider’s conduct was particularly egregious, such as intentional harm or extreme recklessness, you may pursue exemplary damages. These damages compensate for emotional distress, humiliation, and a sense of outrage and are awarded by a judge or jury.
As of 2024, the standard cap for non-economic damages is $280,000. However, in cases involving catastrophic injuries, such as paralysis, permanent cognitive impairment, or wrongful death, the cap increases to about $500,000.
Hire a Qualified Attorney To Handle Your Case
When a medical provider, hospital, or other practitioner fails to treat patients appropriately, it can result in harm and a malpractice lawsuit. If you or a loved one suffered further injury due to medical negligence, speak with our attorneys at Cochran, Kroll, & Associates, P.C.
We can help you understand who can file a medical malpractice lawsuit and take the necessary steps to hold the provider accountable for their actions. We’ve won large settlements for our clients, including a $15.8 million settlement for a birth injury—the largest in Michigan that year!
Our contingency fee basis means we only get paid if we win your case, so there is no financial risk to you to get started. Call our law firm today at 1-866-MICH-LAW and schedule your no-obligation, free case evaluation.
Disclaimer : The information provided is general and not for legal advice. The blogs are not intended to provide legal counsel and no attorney-client relationship is created nor intended.
