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How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits are complex. There are specific guidelines to be followed, which include a deadline within which the lawsuit may be filed.

In addition to the need to prove negligence, the plaintiff must show that the actions of the doctor resulted in injuries and losses. This will require medical and hospital documents.

Complaint

Once your attorney's investigation has found evidence that fraud was committed, he will file a lawsuit in court and issue a summons. The complaint will identify the defendants and make the allegations you make against them.

Malpractice claims are based on the notion that doctors, nurses or other healthcare providers owe a patient a certain standard of care. This is defined as the amount of care and skill that a reasonably prudent medical professional with the same training would exhibit in similar situations. Your legal team will have to show that your doctor did not meet this standard that resulted in injuries due to which you suffered quantifiable damages.

It isn't easy to prove that a doctor's standard is the same as another doctor's. It is important to hire an attorney who has access to experts in the medical field to provide evidence of what a reasonable professional would have done.

It's not just doctors who commit medical mistakes; hospital staff members, such as nurses and anesthesiologists, also are susceptible to making mistakes. This is particularly true for emergency room staff where mistakes are caused by a busy atmosphere and overworked workers. Your attorney might be able to secure testimony from experts in the emergency room who can explain the proper procedure and how the actions of your doctor did not meet this standard.

Discovery

During the discovery stage the attorney will gather and review evidence that could be used to support a malpractice claim. This includes medical records, witness statements, expert testimony and more. The other side's legal team will also have the option to obtain this information from you and your attorney. This is accomplished through interrogatories or requests for documents. Certain documents could be confidential or protected due to privacy laws like HIPAA and its Privacy Rule.

You must also prove that your injury is the result of negligence by the doctor. This is the most difficult aspect of a medical malpractice case as it requires an expert testimony to support your claim.

Your lawyer will also interview witnesses that can prove that the doctor was negligent. This can include assistants, nurses, radiologists, dentists and other personnel who were involved in your care. Your lawyer will know how to conduct powerful and effective depositions to ensure that witnesses to accept that the doctor was negligent.

Most lawsuits are settled before going to trial. For medical malpractice cases it is a common practice due to the fact that going to trial can be expensive. Once the facts of your case have been established, a settlement could be discussed between you and your insurer of your doctor. If a settlement cannot be agreed upon, your case will be heard in court.

Trial

When your lawyer has completed the initial investigation and decides you have an excellent malpractice case, they will file the complaint. It will state clearly your allegations and be served on the defendant along with a summons.

The next phase involves discovery. This includes the exchange of medical records as well as depositions of witnesses. The lawyer will use the evidence to prove that your doctor did not follow the standard of care. The goal is to show that the error was the result of the negligence of your doctor, and resulted in damages.

Your medical malpractice attorney will also collaborate with one or more expert witnesses to prove your claim. These experts will receive medical records and specific information regarding your case, to prepare for their deposition and testify. They may also aid in making your case ready for trial.

As part of the preparation for trial your lawyer will start settlement negotiations with the defense. The process can take many years. In this time, it is likely that you will be recovering from your injuries while determining the amount and value of your damages. If possible, it's the best option for everyone to avoid litigation and settle out of court. Your lawyer will carefully weigh the merits of a settlement offer against your current and future recovery. If the settlement seems reasonable, your lawyer will encourage you to accept it.

Damages

During the discovery phase, plaintiffs need to prove that their losses are significant and that the negligence of the defendant has contributed to the damages. For instance, if the doctor failed to inform the patient of the 30% risk that the procedure would result in the loss of a arm, and the operation was successful, but the patient lost a limb and limb, then the medical professional may be held accountable for malpractice.

A victim may also show that a competent lawyer could have averted or reduced the financial loss. This is often referred to as the "but for test". Additionally, it is important to show that the plaintiff's expenses in pursuit of a successful legal claim that are in excess of the amount of compensation sought.

Our medical malpractice lawyers can explain the different types of damages that could be sustained in a malpractice lawsuit including the past, present and future medical expenses, lost income, pain and suffering and other non-economic losses. The higher the amount the more serious the damage. A decision that is found to be a success could be overturned by an appeal. Settlements that are not in court may be beneficial for certain clients. It will save time and money on costs for litigation, as well being able to avoid the potential risk of having a jury decide an issue on the basis of emotions instead of facts.