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How to File a Medical Malpractice Lawsuit

Both physicians and lawyers must invest significant time and money in numerous medical malpractice lawsuits. This can include physician hours and work product, attorney time court costs as well as expert witness fees and many other costs.

An injury resulting from medical professional's negligence, incompetence, error or omission could result in a medical malpractice claim. The injured party may be able to seek compensation damages, which could include actual economic losses, such as past and future medical bills, as well as non-economic loss such as pain and suffering.

Complaint

A medical malpractice case has many moving parts, and requires evidence that is credible evidence to succeed. The patient who has been injured or their lawyer in the event that the patient has passed away, must prove each of these legal elements:

That a hospital or doctor had a duty to act in accordance with the applicable standard of care. That the defendant breached that obligation. The breach directly caused injury to the plaintiff. This element is known as "cause". A breach of a duty of care does not directly cause injury. It must be proved that it directly caused the injury and was the main reason for the injury.

To ensure the rights of a patient and to ensure that a physician does not continue to commit errors, it is required to file a complaint with the state Medical Malpractice Attorneys board. A report is not a lawsuit, however, it is an excellent first step in starting the malpractice claim. It is often best to consult a Syracuse lawyer for malpractice before making a report or other type of document.

Summons

A summons or claim is filed in a courtroom and sent to the doctor who is defendant as part of the legal process. A lawyer appointed by the court will examine the documents. If it appears that there is a malpractice case the lawyer will file an affidavit as well as a complaint with the court, describing the claimed mistake.

The next step in the legal process is to obtain evidence through pretrial discovery. This involves submitting requests for documentation including hospital billing and clinic notes, as well as taking depositions of the defendant's physician. Attorneys will then question the defendant on oath about the details of the case.

The attorney for the plaintiff will use this information to demonstrate the elements of a claim for medical malpractice lawyer malpractice at trial. These include the existence of a duty on the physician's part to provide care and treatment to patients; the doctor's violation of this duty; a causal link between the breach and the patient's death or injury and a sufficient amount of damages that result from the injury or death to justly award monetary compensation.

Discovery

During the process of discovery, both sides are entitled to seek and receive evidence pertinent to the case. This includes medical records before and following the alleged malpractice, information about experts and tax returns, copies or other documentation that pertains to out-of-pocket expenses the plaintiff claims they incurred, as well as the names and contact details of any witnesses who are scheduled to testify at trial.

Most states have a statute of limitation that allows injured patients only the time period of a certain amount of years after an injury or medical mistake to pursue a lawsuit. These limitations are set by the laws of the state and are subject to a regulation known as the "discovery rules."

To win a medical negligence case the patient who was injured must prove that the doctor's negligence caused harm to a specific person that is physical pain or loss of income. They must also prove causation -- that is, that the negligent treatment was the sole reason for their injuries or death.

Deposition

Depositions are questions-and-answer sessions which take place in the presence of a court reporter who will record the questions as in the responses. The deposition is a part of the process of discovery in which parties gather information for use in a trial.

Depositions allow attorneys to ask witnesses, usually doctors, a series of questions. When a physician is deposed they must answer all questions honestly under an oath. Usually, the physician is questioned questions by an attorney and is then cross-examined in the presence of another attorney. This is a crucial step in the case and the physician must pay attention to it with all their heart.

A deposition is a fantastic way for attorneys to get a detailed background of the doctor, including his education, training and experience. This information is crucial in prove that the doctor did not meet your standards of care and that this breach resulted in injury to you. Physicians who have been educated in this field will typically affirm that they have years of knowledge of specific procedures and techniques that may be relevant to your particular medical malpractice case.

Trial

Your lawyer will submit a complaint to the court and will issue a summons. This initiates a legal process of disclosure, also known as discovery, where you and your doctor's team work together to gather evidence to support your case. The evidence usually consists of medical malpractice attorneys records and the testimony of experts.

The goal of proving negligence is to establish that the actions of your doctor were not in line with the standard of care. Your lawyer must convince the jury that your injuries would be avoided if your doctor had followed the standards of care. Your doctor's lawyers will argue defenses that go against the evidence presented by your attorney.

Despite the common belief that doctors are the target of frivolous claims of malpractice, decades of empirical evidence show that jury verdicts are based on reasonable judgments of negligence and damages and that juries tend to be skeptical of award amounts that are exaggerated. The majority of malpractice cases settle before trial.