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How to File a Medical Malpractice Lawsuit

Both lawyers and physicians must invest a lot of time and money in many medical malpractice lawsuits. This includes doctor hours and work product, attorney time court costs and expert witness fees and countless other expenses.

A medical malpractice claim may be filed when a healthcare professional is negligent, has committed misconduct or erred, or failed to act. Victims of injury can seek compensation for economic losses, like future or past medical bills, as well as noneconomic damages, like pain and discomfort.

Complaint

A medical malpractice lawsuit is made up of many moving parts, and requires evidence that is credible evidence to be successful. The patient who has been injured (or their attorney if they've passed away) must show each of these legal aspects of the claim:

The defendant did not fulfill that duty. The defendant violated that duty. The breach directly caused injury for the plaintiff. This aspect of a malpractice claim is known as "causation." A breach of the standard of care itself doesn't cause injury; however, it must be proven that the breach directly caused the injury and was the proximate reason for the injury.

It is sometimes necessary to file a complaint with a state medical board in order to safeguard patients' rights and ensure that the doctor does not commit further negligence. However, filing a report does not initiate an action, and is often only a first step in making the malpractice claim move. It is generally recommended to consult with a Syracuse lawyer for malpractice before making a report or other type of document.

Summons

A summons or claim is filed in the court and is sent to the defendant doctor as part of the legal procedure. A lawyer for the plaintiff appointed by the court will go through these documents. If it is determined that there may be a malpractice case the lawyer is required to file an affidavit, along with a complaint to the court, describing the alleged error.

The next step in the legal process is obtaining evidence through pretrial discovery. This involves submitting requests to document such as hospital invoices or clinic notes, as well as taking the defendant's deposition where lawyers question the defendant about his or her knowledge of the case under an oath.

The information provided will be used by the plaintiff's lawyer to prove the elements of a medical malpractice claim in court. These include the existence of a duty on the doctor's part to provide care and treatment to patients; the physician's breach of this duty causality between the breach and the patient's injuries or death and a sufficient amount of damages that result from the accident or death to warrant a monetary award for compensation.

Discovery

During the discovery process both sides are allowed to request and receive evidence relevant to the case. This includes medical records that were taken prior to and after an incident of negligence, information regarding experts, copies of tax return or other documentation related to expenses out of pocket the plaintiff claims have been caused, and the names and contact information of witnesses who are expected to testify during the trial.

Most states have a statute-of-limitations which limits the amount of time a patient has to seek compensation for injuries caused by medical error. Those time limits are usually determined by state law, and they are subject to a rule known as the "discovery rule."

To win a medical malpractice lawsuit, a patient who has been injured has to prove that the doctor's negligence caused specific harm, like physical pain or loss of income. They must also prove causation, i.e. that the negligent treatment led to their death or injury.

Deposition

Depositions are question and answer sessions that take place in the presence of a court reporter who documents both the questions and the answers. Depositions are a part of the process of discovery in which parties collect information for use in a trial.

Attorneys can pose a number of questions to witnesses, usually doctors. If a physician is interrogated and questioned, they must answer the questions truthfully under an oath. Usually the physician is asked questions by an attorney and is then cross-examined in the presence of another attorney. This is an essential stage of the case that requires the full attention and focus of the doctor.

Depositions allow lawyers to obtain a detailed background on the doctor's qualifications in relation to his or her education, training and experience. This information is crucial for proving the doctor breached the standard of care you expect and caused injury. For instance, doctors who have trained in the field of malpractice cases generally affirm that they have extensive experience in performing certain procedures and methods that may be relevant to a specific medical malpractice case.

Trial

Your lawyer will file a complaint with the court and a summons. This begins a legal process of disclosure known as discovery where you and your physician's team work together to gather evidence to prove your case. This typically includes medical records and expert witness testimony.

The purpose of proving malpractice is to prove that your doctor's actions did not meet the standards of care. Your lawyer must convince a jury that it is more likely than not that your injuries wouldn't have occurred if your doctor acted in accordance with the standard of care. Your doctor's lawyers will present arguments that are contrary to the evidence provided by your attorney.

Despite the common belief that doctors are the target of false claims of malpractice, decades of empirical evidence demonstrate that jury verdicts reflect reasonable judgments of negligence and damages, and that juries tend to be skeptical of large amounts of money awarded. The vast majority malpractice cases are settled prior to trial.