How to File a Medical Malpractice Lawsuit

Many medical malpractice lawsuits require a lot of time and resources from both physicians and attorneys. This investment covers physician time and work product attorneys' time, court costs and expert witness fees and many other costs.

A medical malpractice case can be filed when a healthcare professional is negligent or has committed misconduct, made an error, or failed to act. Plaintiffs seeking compensation for injuries can file for financial losses, such as future or past medical expenses as well as non-monetary damages, like discomfort and pain.

Complaint

A medical malpractice suit has many moving parts and requires reliable evidence to succeed. The injured person or their attorney if the patient has died, must demonstrate each of these legal elements:

The hospital or doctor had a duty to act in accordance with the applicable standard of care. The defendant failed to meet this duty. That the breach directly caused injury to the plaintiff. This element of an action for malpractice is called "causation." A breach of the standard of care does not cause injury; it must be proven that the breach directly caused the injury and was the primary cause of the injury.

In order to protect the rights of patients, and to ensure that a doctor is not committing further wrongdoing, it's necessary to file a claim with the state medical board. A report is not a lawsuit, but it could be the first step to beginning the process of bringing a malpractice claim. It is usually recommended to speak with an Syracuse lawyer for malpractice before filing a report, or any other type of document.

Summons

As part of the legal process a summons or claim forms is filed with the court and handed to the defendant physician. A plaintiff's lawyer appointed by the court will look over the documents. If it appears that there is a malpractice issue, the lawyer will file an affidavit and a complaint with the court, describing the alleged error.

The next step in the legal process is obtaining evidence through pretrial discovery. This involves submitting documents like hospital billing information as well as notes from clinics and taking the defendant physician's deposition in which attorneys ask the defendant about his or his knowledge of the case under an oath.

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

Discovery

During the process of discovery, each side is entitled to request and receive evidence relevant to the case. This includes medical records from before and after an incident of negligence, details about experts and tax returns, copies of the tax return or other documentation related to out-of-pocket expenses that the plaintiff claims have been paid, as well as the names and contact details of any witnesses who are expected to testify at trial.

There are many states with a statute of limitations that restricts the period that a patient must seek compensation for injuries caused by an error in medical care. These time limits are typically set by law in the state, and they are subject to rules referred to as the "discovery rule."

In order to win a medical malpractice lawyer negligence lawsuit, the injured patient 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 death or injury.

Deposition

Depositions are question and answer sessions that are conducted in front of the court reporter who takes notes of both the questions as well as the responses. The deposition is an element of the discovery process which involves gathering information that can be used in the course of a trial.

Attorneys can ask a series questions to witnesses, usually doctors. When a physician is deposed by a lawyer, the doctor must answer all questions truthfully under oath. Typically, the doctor is asked questions by one attorney, and then cross-examined by a different attorney. This is an important stage in the case and the doctor must focus on it with complete attention.

A deposition is a way for attorneys to obtain a detailed background on the doctor's qualifications in relation to his or the training, education and experience. This information is essential for prove that the doctor did not meet the standard of care in your particular case and that the breach caused you injury. Physicians who have received training in the area will often testify they have extensive knowledge of certain procedures and techniques that may be relevant to your particular medical-malpractice case.

Trial

A lawsuit in a civil court is formally launched when your lawyer file a complaint and summons with the court of your choice. This initiates a legal disclosure process called discovery. You and your doctor's team will work together to gather evidence to support your case. The evidence usually consists of medical malpractice attorneys [click for more] records and testimony from experts.

To prove malpractice, you must establish that the actions of your doctor did not meet the standards of care. Your lawyer must convince jurors that it is more likely than not your injuries would not have occurred had your doctor acted according to the standard of care. Your doctor's lawyer will offer defenses which contradict the evidence presented by your attorney.

Despite the belief that doctors are targets for false claims of malpractice, decades of empirical evidence shows that jury verdicts reflect reasonable estimates of negligence and damages, and that juries are skeptical of excessive award amounts. The majority of malpractice cases settle before trial.