If we, or a member of our families ate harmed by what we suspect may have been an act of medical malpractice, we usually feel that it is our moral duty to report the responsible party to the state agency whose responsibility it is to monitor the conduct and clinical competence of physicians and other such health care providers. On this page, we will look at the responsibility of private citizens, such as ourselves, to report a physician or other health care provider that we feel may have been guilty of malpractice.
All states are required by federal law, via the Medicare and Medicaid programs, to have a system in place that monitors physicians and other providers for their clinical competence. In many states, such reporting is the responsibility of the hospital where a physician has “staff privileges” that allow a physician to admit patients that are best treated in such facilities. In other states, this responsibility may be delegated to local medical societies or even hold physicians responsible to “self-report” if they are accused of malpractice. In all states, companies that provide medical malpractice insurance are subject to mandatory reporting of all malpractice claims settled in or out of court.
As an example of mandatory malpractice reporting, the State of California requires that cases alleging medical malpractice be reported to the Medical Board of California (MBC). This mandatory reporting regulation applies to professional liability (malpractice) insurers, self-insured governmental agencies, physicians and/or their attorneys, and employers of physicians. While California law does not require that private citizens report their suspicions that medical malpractice may have occurred, the MBC does have a system in place to accept complaints from individuals.
Regarding the filing of complaints by private individuals, practically all medical malpractice attorneys will advise against such a course of action because in doing so the right to file a medical malpractice lawsuit at some later date could be compromised by any number of issues such as the California civil statutes of limitations.
It is important to remember that the State of California places time limits on when a lawsuit alleging medical malpractice must be filed. If the act of malpractice did not result in a death, a lawsuit must be filed within one year after the plaintiff discovers, or through reasonable care and diligence should have discovered the injury, or within three years of the date om which the injury, whichever comes first.
If the act of medical malpractice resulted in a death, the statutes require that a lawsuit must be filed within two years of the date of death. There can be exceptions to this rule, but these exceptions are complex in nature and should be explored by an attorney with experience in both wrongful death and medical malpractice law.
The several advantages to first consulting a medical malpractice attorney prior to filing a complaint with a state agency include the fact that malpractice attorneys are often able to conclude that malpractice may, or may not, have occurred based on their initial review of the available evidence. In most cases the initial review of the evidence will lead to the conclusion that 1) malpractice did not occur, 2) malpractice obviously did occur, or 3) malpractice may have occurred but will require a more thorough review by qualified experts.
A second advantage to working with a malpractice attorney is that your attorney will be familiar with the state laws (“Freedom of Information” laws) that govern citizen access to the records of the various agencies that monitor the activities of physicians in areas such as continuing education requirements, the physician’s employment and/or practice history. Such information could prove valuable in establishing a pattern of complaints against a physician or even a pattern of malpractice lawsuits that were settled out of court.
In summary, although we have used California law as examples, we have seen that there are provisions in each state’s laws that allow a private citizen to file a malpractice complaint against a health care provider. We have also seen that is always advisable to work with an attorney in such cases in order to preserve our right to file a claim with an experienced medical malpractice attorney, if necessary, at a later date.