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How to File a Medical Malpractice Lawsuit

Both lawyers and doctors have to invest a lot of time and money in many medical malpractice lawsuits. This investment includes attorney time court fees expert witness fees, and other costs.

A serious injury that is the result of the negligence of a healthcare professional's incompetence, error or omission could result in a medical malpractice claim. Injury victims may seek compensatory damages, which include economic losses such as future and past medical bills, and noneconomic expenses like pain and suffering.

Complaint

A medical malpractice lawsuit has many moving parts and requires reliable evidence to be successful. The injured patient or their attorney, if the patient has died must prove each of these legal elements:

The defendant violated this obligation. The defendant did not fulfill that 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 doesn't cause injury; it must be proven that the breach directly caused the injury and was the main reason for the injury.

It is usually necessary to file a formal complaint with a state medical board in order to safeguard the rights of the patient and to ensure that the doctor doesn't commit additional malpractice. However, filing a claim is not a way to start the process of a lawsuit, and is typically just a first step to moving the malpractice claim. It is often best to consult with an Syracuse malpractice lawyer before filing a report or other type of document.

Summons

As part of the legal process, the summons or claim form is filed with the court and handed to the defendant physician. A lawyer for the plaintiff appointed by the court will go through the documents. If it appears that there is a malpractice case the lawyer is required to file an affidavit, along with a complaint to the court, describing the claimed error.

The next step in the legal process is to obtain evidence through pretrial discovery. This involves submitting documents such as hospital billing information or clinic notes, as well as taking the defendant's deposition in which attorneys ask the defendant about his or her knowledge of the case under an oath.

The plaintiff's attorney will use this information to demonstrate the elements of a medical malpractice claim in court. The elements of a medical malpractice claim include the existence of an obligation on the part of the physician to provide medical and treatment to patients, the physician's breach of this duty and a causal link between the breach and injury or death of the patient, and the amount of damages to warrant a monetary award.

Discovery

During the discovery process both sides are allowed to request and receive evidence relevant to the case. This includes medical malpractice lawyer records from prior to and after an incident of alleged negligence, information about experts and tax returns, copies of the tax return or other documents relating to expenses out of pocket the plaintiff claims have been attributable to them, and the names and contact details of witnesses who will be appearing at trial.

The majority of states have a statute of limitation which allows injured patients an amount of time after a medical error to pursue a lawsuit. These limitations are set by the laws of the state and are subject to a law known as the "discovery rules."

To prevail in a medical malpractice lawsuit, an injured patient has to prove that the negligence of a doctor resulted in specific harm such as physical pain, or loss of income. They must also prove causationwhich means, that the negligent treatment was the sole reason for their injury or death.

Deposition

Depositions are question and answer sessions that take place in the presence of a court reporter who documents both the questions and answers. The deposition is an element of the process of discovery in which the parties collect evidence for use in the trial.

Depositions permit attorneys to ask witnesses, typically doctors for a series of questions. When a doctor is questioned and questioned, they must answer all questions in a straight and honest manner under an oath. Usually, the physician is first asked questions by an attorney before being cross examined by another attorney. This is an important stage of the case that requires the full attention and focus of the physician.

A deposition can help attorneys gather a full background of the doctor's background, including his or the training, education and experience. This information is crucial for showing that the doctor violated your standard of care and caused injury. For instance, doctors who have been trained in the field of malpractice cases usually affirm that they have extensive experience performing certain procedures and practices that may be relevant to a particular medical malpractice claim.

Trial

Your lawyer will submit a complaint to the court and a summons. This begins the legal disclosure process known as discovery. Your doctor and your team will work together to collect evidence to support your case. The evidence typically includes medical records and testimony from an expert witness.

To prove malpractice it is essential to establish that your doctor's actions did not meet the standards of care. Your lawyer must convince the jury that your injuries would have been prevented if your doctor had acted in accordance with the standards of care. The attorneys for your doctor will present defenses that go against the evidence provided by your attorney.

Despite the belief that doctors are the target of frivolous claims of malpractice the decades of evidence confirm that juries make reasonable assessment of the severity of the damage and negligence and that juries are skeptical of excessive award amounts. The vast majority of malpractice cases are settled prior to trial.