Medical Malpractice Case Evaluation Checklist: A Practical Checklist

Summary. A screening and workup checklist: intake, the three dates, the federal-clinic check, the records, the chronology, the merit review, the economics, pre-suit steps, discovery, damages, and liens.

For doctrine, see Medical Malpractice. For the workflow, see Bringing a Medical Malpractice Case.

⚠ Two things bar meritorious cases: the STATUTE OF REPOSE, which runs from the act regardless of discovery; and the PRE-SUIT AFFIDAVIT AND NOTICE requirements, which take months and run INSIDE the limitations period.

Phase 1 — Intake (ten minutes)

What happened, and when? Date of care and date of discovery.
What is the lasting injury? (No harm, no case.)
Where — hospital · private office · clinic (get the exact name) · nursing home · urgent care.
Who — physicians, residents, consultants, and nurses.
What were you told afterward? (An explanation given at the time is frequently the best evidence.)
Economic loss: medical bills, lost earnings, future care needs.
Prior conditions — the defense is almost always that the underlying disease caused the outcome.
Has anyone else reviewed it? Ask what they said.

Calendar three dates today:

Limitations period
STATUTE OF REPOSE (outer limit from the act; runs regardless of discovery)
Pre-suit notice / certificate of merit deadline

Phase 2 — The two-minute check that changes everything

Is the provider a federally deemed entity under 42 U.S.C. § 233? (Community health centers, free clinics, and their staff.)
If yes → FTCA: administrative claim required first (28 U.S.C. § 2675) · two years to present · federal jurisdiction (28 U.S.C. § 1346(b)) · no jury, no punitive damages.
VA or military care → FTCA (and Feres for active duty).
Vaccine injury → petition under 42 U.S.C. § 300aa-11 before any civil action.
Emergency department screening, stabilization, or transfer issue → evaluate EMTALA, 42 U.S.C. § 1395dd, separately (no affidavit requirement in most jurisdictions).

Phase 3 — The records request (itemize it)

Physician orders · progress notes
Nursing notes and flow sheets
Medication administration record
Vital signs; telemetry; fetal monitoring strips
Laboratory and pathology reports
Imaging reports AND the images on disc
Emergency department record including the triage note
Consultation reports
Operative and anesthesia records
Consent forms · discharge instructions
Billing records (show what was actually done)
THE ELECTRONIC AUDIT TRAIL — who accessed the chart, when, what they viewed and entered, and what was altered after the fact. (Never produced unless named.)
Fee limits known under HIPAA (42 U.S.C. § 1320d-2 and its rules).
Preservation letter sent for strips, placenta, explanted devices, specimens, and equipment — all routinely discarded.

Phase 4 — Chronology

Minute-by-minute timeline for the critical period, built from objective sources: laboratory timestamps · medication administration times · monitor strips · nursing entries · audit trail.
Not from narrative notes (written after the fact, by the people at issue).
Gaps identified: abnormal result never acknowledged · critical value called with no documented action · order not carried out · assessment due and not performed · vital sign change with no note.

Phase 5 — Merit review

State expert qualification statute checked FIRST — same specialty · years in practice · active clinical practice or teaching · limits on testimony-derived income.
Complete records sent to a qualified specialist. Records, not a narrative of the theory.
Two questions answered separately, in writing:
- Was there a departure from the standard of care?
- Did the departure cause the injury?
Expert asked directly: is there an alternative explanation for this outcome?
Consulting expert used first where the case is uncertain (work product protection).
Delayed cancer diagnosis → oncologist for staging and survival probability, plus a pathologist.
Loss of chance doctrine: does this state recognize it? Proportional damages? Rejected entirely?

Phase 6 — The economics (before retaining trial experts)

RECOVERABLE
  Past medical (billed vs. paid — check the state's rule)   $______
  Future medical / life care plan                           $______
  Past lost earnings                                        $______
  Future lost earning capacity                              $______
  Non-economic  ← STATE CAP: $______                        $______
  Wrongful death categories per statute                     $______
  LESS collateral source offset (if the state modified it) ($______)
                                          TOTAL             $______

COST TO PROVE
  Standard of care expert(s) · causation expert(s)          $______
  Life care planner · economist · vocational                $______
  Records · depositions · transcripts · exhibits            $______
                                          TOTAL             $______

In a capped state: is a case with severe non-economic harm and no lost earnings viable at all?
Coverage checked: policy limits · claims-made or occurrence · excess coverage · employer with deeper coverage · defendant solvency.
Client told the realistic range, the cap, and the lien exposure in writing, at the start.

Phase 7 — Pre-suit requirements (they run INSIDE the limitations period)

Certificate/affidavit of merit — content, who may sign, when due, whether the expert must be named.
Notice of intent to sue — content and waiting period (60–180 days).
Pre-suit screening panel — findings admissible?
Mandatory pre-suit mediation.
Pre-suit production of records and authorizations.
Backward-planned from the limitations date, with the notice period built in.

Phase 8 — Filing: defendants and theories

Treating physicians and their employers.
Facility on vicarious liability.
Apparent agency pleaded where physicians were independent contractors — signage, badges, billing, and whether the patient chose the physician.
Corporate negligence: negligent credentialing · failure to supervise · inadequate staffing · defective equipment · absent or unenforced policies.
Informed consent pleaded as a separate theory where applicable — and the state's standard identified (professional vs. patient-centered materiality).
Res ipsa loquitur / common knowledge, where the negligence is obvious.

Phase 9 — Discovery priorities

The audit trail (if not already obtained).
Policies and protocols in effect on the date, with version history.
Staffing records — assignments, ratios, acuity — in hospital and nursing home cases.
Credentialing and privileging file — expect a peer review privilege fight; original source documents remain discoverable even if a committee reviewed them.
Prior similar incidents and complaints.
Equipment maintenance records; recalls and safety notices.
Billing records.
State survey history (nursing homes — public).
Depositions: nurses first, defendant physician last.

Phase 10 — Damages proof

Life care plan by a certified planner, supported by treating physicians. (Usually the largest number.)
Economist — present value, lost earning capacity.
Vocational expert where capacity is disputed.
Before-and-after witnesses — disinterested, describing concrete ordinary change.
Day-in-the-life video in catastrophic cases, properly disclosed.
Verdict form itemized by category, with interrogatories on disputed elements.

Phase 11 — Liens, before recommending any settlement

Medicare — conditional payment resolution started early (slow).
Medicaid — recovery limited to the medical portion; allocate on the record.
Medicare Advantage and Part D plans (frequently missed).
ERISA plan — plan language and funding status determine the reimbursement right.
Hospital and provider liens — check whether properly perfected; many are not.
Workers' compensation carrier.
Child support arrears.
All negotiated for reduction (procurement cost reductions are available).
Net-to-client arithmetic run and shown to the client.

Phase 12 — Closing

Special needs trust established before funds are received, where the client receives means-tested benefits.
Structured settlement arranged before funding (cannot be created afterward).
Court approval obtained for minors and incapacitated persons, with lien resolution and trust arrangements in the petition.
Data Bank reporting implications discussed where payment is made on behalf of a practitioner.
Client advised of any parallel routes: medical board complaint · hospital patient advocate · communication-and-resolution program.