The Legal Process: Initial Stages of a Malpractice Claim



  • Preparation is begun (review of medical records by the plaintiff’s attorney and expert witness: retrieval of all medical and office records, patient bills, and other pertinent documents).

  • A procedural process may be required by state law (e.g., prelitigation panels such as medical review panels, medical tribunals, or arbitration panels). In Louisiana, the Medical Review Panel process is found in La RS 9:5628.

  • Petition for damages or complaint is filed in court by the plaintiff’s attorney if there is no Medical Review Panel or the healthcare provider is not covered.

  • Complaint/summons/petition for damages is sent to the defendant health care provider by certified mail or served by a sheriff or process service company.

  • Defendant health care provider contacts insurance company to notify it of the claim.

  • The insurance company assigns an attorney or law firm to the defendant health care provider.

  • Answer to the complaint or counterclaim is filed by defendant; defenses are alleged.

  • Discovery Stage

  • Pre-Trial Conference

  • Mediation



  • Jury selection

  • Opening statements by plaintiff and defendant

  • Case presentation by plaintiff

  • Case presentation by defendant

  • Motion by defendant for directed verdict against plaintiff

  • Closing statements by plaintiff and defendant

  • Jury instructions by the judge

  • Jury deliberations

  • Verdict

  • Appeal (optional)

© 2013 Tonia D. Aiken, RN, JD

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