How to File a Medical Malpractice Lawsuit

Bringing a medical malpractice suit against a doctor or hospital requires evidence that the defendant violated his or her obligation to patients. This evidence may include hospital and medical documents.

Our lawyers have experience deposing witnesses in a professional manner. They could be doctors or other medical professionals working in private practice, or even staff members at a hospital or clinic.

Negligence

When a patient visits a doctor or hospital professional and receives medical care, they are entitled certain standards of medical treatment. Unfortunately they aren't always met, or even violated. This breach can have devastating results.

A lawsuit can be brought against a medical professional if patients are injured or suffers a death due to the negligence of that doctor. To prove a case the injured person must demonstrate four legal elements: duty, breach, damages and causation.

Malpractice is defined as an act or omission by a physician that deviates from the accepted norms of medical practice in the medical field, and can cause injury to the patient. It is an aspect of tort law that deals with civil wrongs that do not fall under contractual duties or criminal offenses.

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 going to cause harm before they are able to claim malpractice. Normal negligence is not a requirement. A surgeon who accidentally cuts or nicks a vein or nerve during surgery is guilty of negligence but not negligence. This is because the surgeon didn't intend to cause harm to anyone.

In a medical malpractice case the defendant is under an obligation to treat the patient in accordance with the standards of care that a reasonably competent healthcare professional with similar expertise and training in similar situations would provide. The breach of duty is significant because it demonstrates that the alleged negligence caused the injury.

Damages

In a malpractice case damages are calculated based upon your losses caused by a doctor's negligence. This can include both financial losses, including future medical costs, and non-economic damages such as discomfort and pain.

To recover damages, you must show that the doctor breached the duty of care, that the physician's deviation from the norm caused injury, and this injury had quantifiable monetary consequences. This is a complicated legal analysis, which usually requires expert witness testimony.

Some of these losses are obvious, such as if your doctor made an error that led to an infection or other medical complications, and you needed additional treatment because of it. Other damages are less readily obvious, for instance if your doctor has misdiagnosed you and you're unable to receive the appropriate treatment.

You are able to sue for wrongful-death in the event that your doctor's negligence results in your death. You may be able to claim punitive damages in addition to the amount you would receive in a case of survival.

In a majority of states, there are limitations to the amount you can get in a malpractice case. These caps vary from state to state and are usually applicable to both financial and other damages. Some states also have rules that limit the time you have to wait to make a claim.

Time Limits

As with any lawsuit there are time limits which must be followed or the case could be barred. In general, a malpractice lawsuit must be filed within two to six years from the medical malpractice law firm that occurred. The timeframe for filing a lawsuit is different for each state.

The time limit is complicated and it is important to consult with an attorney right away. The law firm will conduct an investigation to determine if malpractice was committed and if it could be found to be valid in court. This can take up to a few weeks or even months.

Medical malpractice cases are governed by different laws than other types of cases and the statute of limitations is changed. For example in Pennsylvania the patient must make a claim within two years of the date they were aware of the malpractice, or when a reasonable person would have recognized that the harm existed. This is known as the discovery rule.

In certain states, the statutes of limitations begin to expire on the date when the medical error occurred. This is an issue if the medical error doesn't cause immediate symptoms. As an example, suppose the doctor is negligently leaving an object that is foreign in the body after surgery. The patient may not realize the foreign object until three or more years after the surgery. In this instance, the statutes of limitations may have started running from the date of surgery rather than the moment of identifying the error.

Expert Witnesses

Expert witnesses are often called upon to clarify the facts in medical malpractice cases. A plaintiff's expert witness will discuss the doctor's obligation of treating the patient with respect and the medical standards applicable to the region and specialty for doctors with similar qualifications and expertise and the ways in which the defendant departed from those standards. The expert will explain how the departure directly caused the injury suffered by the patient.

The defendant will employ a professional to counter the plaintiff's expert and offer their professional opinion as to whether the doctor's actions met the standards of care. Experts could differ, but the fact-finder decides which expert is most trustworthy.

It is better for the expert to still be working in the medical field, as they will have a greater understanding of current practice. Judges and jurors often consider professionals who are practicing more credible than experts whose sole source of income is the testifying in court.

It is also better to hire an expert who specializes in the field of malpractice. For example, a medical expert who is experienced in treating breast cancer can provide a more convincing argument about the reason for a plaintiff's injury. A medical malpractice attorney in Ocala will know the best experts to speak with.