How to File a Medical Malpractice Lawsuit

Bringing a medical malpractice suit against a hospital or doctor requires evidence that the defendant acted in breach of his or her duty to patients. This can be evidence from hospitals and medical documents.

Our attorneys have a wealth of experience in taking depositions that are effective. They could be doctors or other medical professionals who are in private practice or work at a clinic or hospital.

Negligence

Patients have the right to be treated with respect to certain standards when they visit a hospital, doctor or health care professional. Unfortunately these standards aren't always adhered to or even observed. This breach could have devastating consequences.

If someone is injured or suffers death as a result of a physician's negligence, they could pursue a lawsuit against the medical professional. To prove a case the patient who has been injured must establish four legal elements which are breach of duty, duty, causation and damages.

Malpractice is defined as an act or omission of a physician that deviates from the norms of practice accepted within the medical profession, and can cause injury to the patient. It is a section of tort law that deals with civil wrongs, not criminal offenses or contractual obligations.

Medical negligence differs from regular negligence because the victim must prove that the physician knew or should have known that their actions would cause harm in order to prove malpractice, whereas normal negligence does not. For example the surgeon who creates a cut on a vein or nerve during surgery could be found in the wrong of negligence, but not malpractice because the doctor was not aiming to cause harm.

In a case of medical malpractice, the defendant has the obligation of treating the patient in accordance with the standard of care a reasonably competent healthcare professional with comparable experience and education in similar circumstances could provide. The breach of duty is significant because it shows that the negligent act caused the injury.

Damages

Damages in a malpractice case are determined by the losses you suffered due to the negligence of a physician. This could include financial losses, such as future medical bills, and non-economic losses like pain and discomfort.

To be able to claim damages, it is necessary to prove that a doctor violated the duty of care, that his deviation from the standard of care resulted in injury, and that the injury resulted in financial losses that are quantifiable. This is a complex legal analysis that usually requires expert witness testimony.

Some of these losses can be spotted quickly, for example when a mistake made by a doctor led to an infection, or other medical issues that require additional treatment. Other losses are not as obvious, for instance if your doctor has misdiagnosed you and you are unable to receive the right treatment.

If the negligence of your doctor causes you to die and you are unable to sue, you may be able to sue for the cause of death. You may seek punitive damages in addition to the compensation you would get in a lawsuit for survival.

In the majority of states, there are limits on the amount you can recover in a malpractice case. These limits vary from state to state, and are typically applicable to both financial and other damages. Some states also have rules that restrict how long you can wait to bring a lawsuit.

Time Limits

As with any lawsuit there are time frames that must be followed or the case could be dismissed. Generally speaking, a medical malpractice lawsuit must be filed within two to six months of the medical malpractice occurring. The specific time limit is different for each state.

The time limit can be complicated and it is important to consult a lawyer right away. The law firm will conduct an investigation to determine if any malpractice was committed and if it could hold up in the court. This process can take months or even weeks.

Medical malpractice cases involve different laws than other types of cases, and often the statute of limitations is changed. For example in Pennsylvania the patient must submit a claim within two years from the day they discovered the malpractice or that a reasonable person would have recognized that the harm existed. This is known as the discovery rule.

In some states, the statutes of limitations begin to run from the date on which the malpractice occurred. This can be an issue if the malpractice does not cause any immediate symptoms. For instance, suppose that doctors mistakenly leave an object that is foreign in the body after surgery. The patient may not discover the foreign object until at least three years after the surgery. In this case the statute of limitations could have begun to start running from the date of the surgery instead of the moment the error was discovered.

Expert Witnesses

Many medical malpractice cases depend on expert witnesses to help clarify the facts of the case. A plaintiff's expert will testify on doctors' obligations to the patient, the medical standards for physicians with similar qualifications in the same area and specialization, and the ways in which the defendant departed from those standards. The expert will then describe how the departure directly led to the patient's injury.

The defendant will engage an expert to challenge the plaintiff's expert and provide their professional opinion as to whether the doctor was able to provide the required care. It is common for experts to disagree with one other, but the factfinder decides who is the most trustworthy on their knowledge and experience.

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

It is also recommended to hire an expert who is specialized in the field of malpractice. A medical expert who has experience treating breast cancer, for instance, can present a an argument convincingly as to the reason for an injury. A medical malpractice lawyer in Ocala knows which experts to ask.