Medical Malpractice

Medical Malpractice: Can I Sue the Hospital?

Reviewed by David Goguen, J.D., University of San Francisco School of Law
It's true that a hospital or other care facility can be liable for medical malpractice, but when a doctor's medical negligence is at issue, much depends on the nature of the relationship between the facility and the practitioner.

Although patients may not have a legal right to five-star customer service at hospitals and other care facilities, patients are entitled to a certain basic level of care. When conditions or conduct at a hospital rise to the level of medical malpractice, a patient has a legal right to compensation for any resulting harm, but it isn’t always easy to figure out who is actually liable -- the facility itself, as an employer? Or a doctor who practices there, as an independent contractor? This article will highlight some of the issues that are unique to medical malpractice claims involving hospitals, and help you avoid some common pitfalls.

1. Determine Who Is Legally Responsible: the Hospital, an Employee, or an Independent Contractor

Simply because medical negligence occurred at a hospital does not mean the hospital itself is legally responsible. Generally speaking, hospitals, like other employers, are vicariously liable for the negligence of their employees, but not for the negligence of independent contractors.

Typically, nurses, medical technicians, and support staff are hospital employees. If a patient is injured while being treated by a hospital employee, the patient can usually sue the hospital for resulting damages. Most doctors, however, are independent contractors, not employees. So, if your injuries were caused by the medical negligence of a doctor who was acting as an independent contractor in the hospital setting, you must bring your medical malpractice claim directly against the doctor rather than against the facility.

Sometimes, of course, these "fault lines" blur. For instance, if a patient is injured by a doctor who is an independent contractor, but the hospital knew (or should have known) of the doctor’s incompetence, the patient may have viable negligence claims against both the hospital (for negligent supervision, or negligent hiring and firing practices) and the doctor (for the malpractice itself).

The important point to keep in mind: don’t make any assumptions about a hospital’s liability for the actions (or inaction) of an individual healthcare provider without verifying that individual’s employment status.

Learn more: Do I Have a Medical Malpractice Case?

2. Timing Is Everything: Bring Your Claim within the Applicable Limitations Period

In order to ensure the availability of evidence witnesses, and to prevent claimants from delaying unnecessarily in seeking a legal remedy for their injuries, states impose strict statutory time limits (known as “statutes of limitations”) on the filing of different types of lawsuits. While these limitations periods vary from state to state, the window for bringing a medical malpractice lawsuit is typically between one and three years from the date of the negligent act. If you fail to file your lawsuit within that time period, your claim will almost certainly be dismissed, unless you can prove that you’re entitled to more time under one of the rare exceptions that extend the filing deadline.

Get the details on the law in your state: State-by-State Medical Malpractice Statute of Limitations (from

3. Get Your Paperwork in Order: If Necessary, Prepare a Certificate of Merit

In an effort to prevent the filing of baseless medical malpractice lawsuits, a growing number of states now require patients to file what is known as a “certificate of merit” or “affidavit of merit” along with the initial paperwork that starts the lawsuit.

Preparing a certificate of merit entails retaining an expert medical witness to review the relevant medical records and assert under oath that the healthcare provider deviated from accepted medical practices, resulting in injuries. Your medical malpractice attorney will be familiar with this filing requirement and any other procedural hoops that medical malpractice plaintiffs need to jump through in your state.

4. Don’t Go It Alone: Discuss Your Case With a Medical Malpractice Attorney

Medical malpractice cases are often incredibly complex, making self-representation an unwise strategy for most plaintiffs. An experienced attorney will help you navigate the legal, medical, and procedural intricacies of your lawsuit and will retain the right expert medical witness to strengthen your case.

Most medical malpractice lawyers operate under a contingency fee agreement, meaning the client does not pay the lawyer out-of-pocket. Instead, the lawyer receives a portion (usually about one-third) of any amount the client is ultimately awarded through out-of-court settlement or judgment after trial.

Learn more about Selecting a Good Medical Malpractice Lawyer.

5. Don’t Give Up

Overwhelming as the prospect of bringing a medical malpractice lawsuit may seem, remember that you are certainly not the first person to be injured by the negligence of a healthcare provider. Pursuing your claim will not only enable you to recover compensation for your losses, but it may also serve to improve the overall quality of health care for others. So if you have a valid medical negligence claim against a hospital, you may be in for a fight from the facility’s insurers and attorneys, but it’s important to see it through.

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