Anatomy of a Malpractice Claim: How Cases Actually Get Screened and Filed

By John Mahoney · August 2026 · 12 min read

Most physicians learn how malpractice litigation works by being in it, which is the worst possible curriculum: high stakes, no map, and every explanation arriving from someone with a stake in your reaction. This is the map, written neutrally.

We build case-screening software used on both sides of this system, so the description below reflects how the screening actually gets done rather than how either side describes it in a brochure. Nothing here is a criticism of patients who file or of the lawyers who represent them; a claim is a legitimate use of the civil justice system, and the arithmetic below is arithmetic, not appetite.

The funnel, and how narrow it is

Start with the base rate. The Harvard Medical Practice Study matched records for more than 31,000 hospitalized patients against New York's malpractice claims data. Of the 280 patients who suffered an adverse event caused by negligence, eight filed a claim — a weighted rate of 1.53% (Localio et al., NEJM 1991;325:245–51). The overwhelming majority of adverse events, including negligent ones, never produce a claim at all.

At the other end, career exposure is high anyway, because the denominator is a whole career. Analyzing 233,738 physician-years from a national insurer, Jena and colleagues found 7.4% of physicians faced a claim in a given year, and 1.6% had a claim leading to a payment — meaning 78% of claims closed without payment. Projected forward, 75% of physicians in low-risk specialties and 99% in high-risk specialties had faced a claim by age 65 (NEJM 2011;365:629–36).

Both facts are true at once, and physicians usually hold only one of them. Being named is common over a career. Being named for any particular adverse event is rare. Understanding why requires walking the filter stages.

Stage 1: The patient decides to make a call

Nothing happens until an injured patient or family picks up the phone, and the research on what pushes them to do it is consistent: unanswered questions, the sense of being brushed off, and the suspicion that something is being withheld. We cover that literature in detail in the conversations that prevent claims. For pipeline purposes, the relevant point is that this stage is driven substantially by the aftermath, not only by the injury.

Stage 2: Intake screening, and why most calls end here

Nearly all plaintiff-side medical malpractice work is done on contingency, which means the firm funds the case and is paid only from a recovery. That single structural fact governs everything downstream.

The best empirical picture comes from a national survey of plaintiff attorneys by Joanna Shepherd, published as "Uncovering the Silent Victims of the American Medical Liability System," 67 Vanderbilt Law Review 151 (2014). Her findings:

• Over 75% of responding attorneys reject more than 90% of the cases they screen.
• More than half will not accept a case unless expected damages are at least $250,000 — even when they are nearly certain to win on the merits. Where the outcome is less certain, most required expected damages of at least $500,000.
• The reasons attorneys gave were insufficient damages and high litigation expense — not lack of merit.

Read that carefully, because it cuts against the usual framing in both directions. A case can be meritorious and still be declined. A case can be declined for reasons that have nothing to do with whether the care was reasonable. And the corollary that matters to a physician: a case that clears intake has usually cleared a damages threshold first. Severity of outcome, not degree of deviation, is the strongest single predictor of whether anyone will look at your chart at all.

The survey is self-reported and now over a decade old, and it comes from an access-to-justice perspective. But its central claim — that small-damages cases are economically unreachable — is corroborated from the other side of the aisle by defense-side data on what litigating actually costs.

Stage 3: The merit review — four questions, in order

A case that survives intake goes to substantive review, usually by a legal nurse consultant or a physician reviewer working from the records. Four questions get asked, and they are not weighted equally.

1. Damages: is the injury large and permanent?

Asked first, because it gates everything else. A missed diagnosis with full recovery rarely proceeds regardless of how clearly the standard was breached.

2. Causation: can it be proven, not just believed?

This is where most clinically troubling cases die. The reviewer must be able to show the deviation caused the outcome — not that it preceded it. In a patient with advanced comorbidity, a poor baseline prognosis, or several plausible contributing causes, causation becomes the hardest element to carry, and experienced reviewers know it.

3. Breach: did the care fall below the standard?

Often the most straightforward of the four, and the one physicians assume is the whole inquiry. It is one of four.

4. Defensibility of the record

This is the question physicians almost never anticipate, and the one where your own habits are the input. The reviewer is assessing how the chart will read to a jury: whether the documented reasoning holds up, whether entries contradict the flowsheets and medication records, whether notes were amended after the outcome, whether copy-forward text asserts exams that could not have occurred. A record that shows a clinician thinking makes a case harder to bring; a record with internal contradictions makes a marginal case viable. That mechanism — and how to write on the right side of it — is the subject of documentation that prevents lawsuits, and the reviewer's-eye view is in documentation defensibility. For post-2023 charts, provenance questions now extend to AI-drafted notes and their metadata, covered in how AI is changing the medical record.

The full workflow, from the reviewing side, is laid out in our case-screening guide.

Stage 4: The statutory gates

Filing is not simply a matter of drafting a complaint. Most states impose a pre-suit or early-suit expert requirement, and they take structurally different forms. The National Conference of State Legislatures counts 28 states with an affidavit- or certificate-of-merit requirement; commercial surveys put the number nearer 32, and the gap is definitional — whether you count pre-suit notice statutes, attorney-only certifications, and panel states. Separately, NCSL counts 17 jurisdictions that require cases be heard by a screening panel before trial.

The categories, with representative examples:

Two practical consequences for a physician defendant. First, in panel and pre-suit-notice states you may learn of a claim long before any complaint exists, and the clock on your carrier notification starts then. Second, these gates are real filters — but they screen for the availability of a supporting expert opinion, not for the ultimate strength of the case. Our overview of certificate-of-merit requirements goes state by state.

Stage 5: Timing — limitations, discovery, repose

Most states use a layered scheme. A limitations period runs from the act or omission (commonly two or three years, with outliers in both directions). A discovery rule gives a shorter window running from when the injury was, or reasonably should have been, discovered — the mechanism that lets a retained-foreign-object or missed-cancer case be filed years later. And an outer statute of repose cuts off claims entirely after a fixed period regardless of discovery.

Washington's statute is a clean illustration of all three: its supreme court has described RCW 4.16.350(3) as containing "a three-year statute of limitations, a one-year discovery rule, and an eight-year statute of repose." It is also an illustration of how unstable the outer layer is — in Bennett v. United States (2023), the court held that eight-year repose provision unconstitutional under the state constitution's privileges and immunities clause. Other state high courts have struck down repose provisions on similar open-courts grounds.

Tolling adds further layers: limitations periods are typically extended for injured minors, and many states carve out foreign objects, fraudulent concealment, or continuing treatment. The variation is wide enough that no national summary is safe to rely on — ours included. See limitations periods by state and the discovery-rule traps for orientation, then check the current statute.

Why you may be named and then dropped

Physicians take this personally, and it is worth understanding structurally. Early in a case, before discovery, the plaintiff's side often cannot tell from the records alone which clinicians made which decisions — particularly in a chart with many co-signers, verbal orders, and cross-coverage. Where a limitations or repose deadline is approaching, there is no time to resolve that before filing. The result is that defendants get named broadly and peripheral clinicians are frequently dismissed later, once discovery clarifies roles, because keeping them in the case is expensive for the plaintiff too.

Being named early says less about the evidence against you than it feels like it does. It is not nothing — but it is often a function of the calendar and an ambiguous chart, which is one more argument for notes that make authorship and decision-making legible.

What happens to claims after they are filed

The closed-claims picture, from the Medical Professional Liability Association's Data Sharing Project as reported by the American Medical Association for claims closing 2016–2018:

• 65% of claims were dropped, dismissed, or withdrawn.
• 72% of claims involved no indemnity payment.
• 6% were decided by trial verdict — and 89% of those were won by the defendant.

Jena and colleagues' analysis of litigation outcomes fills in the timeline (Arch Intern Med 2012;172:892–94): claims resolved without litigation averaged 11.6 months; litigated claims 25.1 months; claims tried to a defense verdict 39.0 months. Roughly 4.5% of all claims reached a verdict, and about 79.6% of those verdicts favored the physician.

Two honest readings of that data. The reassuring one: the modal outcome of a malpractice claim is that it goes away without a payment, and the modal outcome of a trial is a defense verdict. The unreassuring one: those outcomes arrive slowly, and the duration is itself the burden. A separate analysis found physicians spend an average of about 50.7 months of a career with an open, unresolved claim.

The two variables you control

Nearly every input to this pipeline is outside your hands. The severity of the patient's injury, the damages threshold at the firm that gets the call, the state's limitations scheme, whether an expert will sign an affidavit — none of it is yours.

Two things are. The record you wrote before anything went wrong, which is assessed at Stage 3 and again at trial. And how you testify, which becomes the case's center of gravity the moment your deposition is taken, since in most cases you are the most important witness and the transcript does not get a second draft. Neither is glamorous. Both are trainable, and both are entirely within your control before you ever need them.

The bottom line

A malpractice claim is not an accusation that survives on outrage. It passes through a patient's decision to call, an economic filter that rejects the large majority of inquiries, a merit review weighted toward damages and provable causation, a statutory expert gate in most states, and a limitations clock — and then, more often than not, it ends without a payment.

Knowing the shape of that pipeline is worth something on the day you are named, when the instinct is to assume the worst has already been decided. It has not. And the two stages where your own prior conduct is actually being weighed — the defensibility of your record and the quality of your testimony — are the two you can prepare for in advance.

Related reading

• Documentation That Prevents Lawsuits — and the Kind That Creates Them
• The Conversations That Prevent Claims: What the Research Actually Shows
• How to Screen a Medical Malpractice Case: The Complete Guide
• Certificate of Merit Requirements in Medical Malpractice
• Sued for Malpractice: A Physician's Step-by-Step Survival Guide
• The Physician Defendant's Deposition Prep Checklist

This article is educational information for clinicians and is not legal advice, nor does it create an attorney-client relationship. Pre-suit requirements, limitations and repose periods, tolling rules, and panel procedures vary substantially by state and change frequently; statutes and decisions cited are research starting points and should be independently verified. If you have been notified of a claim, contact your malpractice carrier and counsel.