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How to File a Medical Malpractice Lawsuit

Both lawyers and physicians must invest a lot of time and money in numerous medical malpractice lawsuits. This can include attorney time, court fees, expert witness fees and other costs.

A medical malpractice claim can be filed in the event that a healthcare professional has been negligent or has acted in a manner that is illegal, made an error, or failed to act. Plaintiffs seeking compensation for injuries can file for economic losses, such as future or past Medical Malpractice Attorneys bills and also non-economic injuries, such as discomfort and pain.

Complaint

A medical malpractice lawsuit is a complex one and requires credible proof for success. The person who was injured (or their attorney if they have died) must prove each of the following legal elements of the claim:

The defendant did not fulfill that duty. The defendant breached this duty. That the breach directly caused injury to the plaintiff. This element is known as "cause". A breach of a standard of care does not necessarily cause injury. It must be proved that it directly caused the injury and was the primary cause for the injury.

It is sometimes necessary to file a complaint with a state medical board in order to safeguard the patient's rights and ensure that the doctor doesn't engage in further errors. A report is not a lawsuit, but it can be an excellent first step in beginning the process of bringing a malpractice claim. It is often best to consult with a Syracuse attorney for malpractice prior to filing a report or other document.

Summons

A summons or claim is filed in court and sent to the defendant doctor as part of the legal procedure. A lawyer appointed by the court will look over these documents. If it appears there could be a malpractice claim, the lawyer will file an affidavit, along with a complaint to the court, detailing the alleged error.

The next step is to gather evidence by pretrial disclosure. This involves submitting documents like hospital billing information and clinic notes and taking the deposition of the defendant's physician during which lawyers ask the defendant on his or his knowledge of the situation under an oath.

The attorney for the plaintiff will use this information to prove the elements of a medical malpractice claim during trial. The elements of a medical malpractice case include the existence of an obligation on the part of the physician to provide treatment and care to patients, the physician's violation of this duty as well as a causal connection between the breach and the injury or death of the patient and a sufficient amount in damages to warrant a monetary award.

Discovery

During the process of discovery both sides are allowed to request and receive evidence that is relevant to the case. This includes medical malpractice law firm records prior to and after an incident of negligence, information regarding experts and tax returns, copies of the tax return or other documents relating to expenses out of pocket the plaintiff claims to have caused, and the names and contact information of any witnesses who will be testifying during the trial.

There are many states with a statute of limitations that limit the length of time that a patient is allowed to pursue a lawsuit after being injured due to medical error. Those time limits are usually set by law in the state, and are subject to rules referred to as the "discovery rule."

To prevail in a medical malpractice lawsuit, a patient who has been injured must show 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 resulted in their injury or death.

Deposition

Depositions are question-and-answer sessions that are conducted in front of the court reporter who takes notes of both the questions and responses. The deposition is part of the process of discovery, which consists of gathering information that can be used in the course of a trial.

Attorneys are able to ask a series of questions to witnesses, usually doctors. If a physician is interrogated, he or she must answer all questions honestly under oath. Typically, the doctor is first asked questions by an attorney, and then interviewed by another attorney. This is a crucial stage of the case that requires the full attention and focus of the physician.

Depositions are a great way for attorneys to get an extensive background on the doctor, including her training, education and experience. This information is critical to prove that the doctor did not meet the standards of care in your case and that the breach directly caused injury to you. Physicians who have been trained in the area will often be able to prove they have experience in performing certain techniques and procedures that may be relevant to a specific medical-malpractice case.

Trial

A civil court is launched when your lawyer lodges a complaint and a summons with the appropriate court. This triggers a legal procedure of disclosure, also known as discovery, where you and your physician's team work together to gather information to prove your case. This typically comprises medical records and testimony of an expert witness.

To prove malpractice it is necessary to prove that your doctor's actions were not in accordance with the standards of care. Your lawyer must convince the jury that your injuries would be avoided if your doctor had acted in accordance with the standard of care. The lawyer representing your doctor will argue defenses that contradict the evidence presented by your lawyer.

Despite the belief that doctors are targets for malpractice claims that are frivolous, decades of empirical research shows that jury verdicts tend to reflect fair assessments of negligence and damages and juries are skeptical of overinflated damages awards. The vast majority of malpractice cases are settled before trial.