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How to File a Medical Malpractice Lawsuit

A medical malpractice lawsuit against a doctor or hospital must prove that the defendant has violated his or her duty to patients. This evidence can include hospital and medical documents.

Our lawyers are skilled at taking depositions that are effective for witnesses. They could be doctors or other medical professionals working in private practice, or staff members at a clinic or hospital.

Negligence

When a patient sees a doctor, hospital or health care professional they are entitled to certain standards of medical care. Unfortunately these standards aren't always met or even violated. The consequences of this breach can be devastating.

A lawsuit may be filed against a medical professional when a patient is injured or suffers a death due to the negligence of that doctor. To have a valid case, the person who was injured must establish four legal aspects: duty, breach, causation and damages.

Malpractice is defined as an act or omission by a physician that deviates from the accepted norms of medical practice in the medical community and inflicts harm on the patient. It is a part of tort law, which deals with civil wrongs and not criminal offences or contractual duties.

Medical negligence differs from regular negligence in that the victim has to prove that the doctor was aware, or should have known, that their actions were likely to cause harm before they are able to claim malpractice. Normal negligence is not a requirement. For instance an surgeon who accidentally cuts a vein or nerve during surgery is guilty of negligence but not malpractice as the doctor did not intend to cause harm.

In a medical malpractice case the defendant has an obligation to treat the patient in accordance with the standard of care that a reasonably prudent healthcare professional with the same experience and training in similar circumstances could provide. The violation of this duty is an essential aspect since it shows that the alleged negligence caused the injury.

Damages

In a malpractice lawsuit, damages are determined by the losses you suffered as a result of the negligence of a physician. This could include financial losses, like future medical costs, as well as non-economic damages such as pain and discomfort.

To be able to claim damages, you need to establish that a doctor acted in violation of an obligation, that his deviation from the standard of care caused injuries, and that the injury caused financial harm that was quantifiable. This is a complex legal analysis, which usually requires expert witness testimony.

Some of these losses are evident for instance, if a doctor made an error that led to an infection or other medical complications, and you needed additional treatment in the aftermath. Other losses are not as evident, for instance, if your doctor is unable to diagnose you correctly, and you aren't able to receive the right treatment.

You are able to sue for wrongful-death if your doctor's negligence causes your death. You can claim punitive damages in addition to the money you'd get in a lawsuit for survival.

In a majority of states, there are limits on what you can receive in a lawsuit for malpractice. These caps vary from state to state and are usually applicable to both economic and other damages. Certain states also have rules that restrict the time you have to wait to make a claim.

Time Limits

As with any lawsuit, there are specific time limits that must be followed or the case may be dismissed. A malpractice lawsuit is required to be filed between two and six years following the time when the mishap occurred. The timeframe for filing a lawsuit is determined by the state.

The time limit can be complex and it is essential to consult an attorney immediately. The law firm will investigate to determine if there was a mistake and if the case could stand up in court. This can take months or even weeks.

Medical malpractice cases have different laws than other types of cases, and the statute of limitations is altered. In Pennsylvania the patient is entitled to two years from the date that they were aware of the negligence. This is known as the discovery rule.

In other states, the statute of limitations begins to run from the date the malpractice occurred. This could be an issue if the error does not immediately trigger symptoms. For instance, suppose that an unintentionally negligent doctor leaves a foreign object inside the body following surgery. The patient might not find the object until three years after the surgery. In this scenario the statute of limitations could have begun beginning from the date of the procedure, not necessarily the time of discovery of an error.

Expert Witnesses

Many medical malpractice cases rely on expert witnesses to help clarify the facts of the case. An expert witness for a plaintiff will testify about the doctor's duty of treating the patient with respect, the medical standards in the area and in the specialty of this type of doctor with similar qualifications and skills and the manner in which the defendant's actions were in violation of the standards. The expert will discuss how the defendant's deviance directly impacted the victim's injury.

The defendant will employ an expert to counter the plaintiff's expert, and offer their professional opinion about whether the doctor met the standard of care. The experts may disagree, but the fact-finder decides which expert is the most credible.

It is recommended for the expert to continue working in the medical field as they are more knowledgeable about current practice. Judges and jurors often find practicing professionals more credible than experts whose only source of income is testimony in court.

It is also better to have an expert who specializes in the area of malpractice. For instance, a medical expert who is proficient in treating breast cancer can make an even more convincing case for the reason for a plaintiff's injury. A seasoned Ocala medical malpractice attorney will know which expert witnesses to contact for your case.