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How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits can be very complicated. There are specific guidelines to be followed including a certain time period in which the suit can be filed.

In addition to proving negligence, the person seeking compensation must prove that the doctor's actions resulted in losses and injuries. This will require hospital and medical documents.

Complaint

Once your attorney's investigation has uncovered evidence that malpractice was committed, he will file a lawsuit in court along with summons. The complaint will identify the defendants and state the allegations against them.

Malpractice claims are founded on the notion that nurses, doctors and other healthcare providers are obligated to a patient the same level of care. This standard is defined as the amount of care and skill that a reasonable medical professional trained similarly would apply in similar circumstances. Your legal team must to show that your doctor violated this standard that resulted in injuries due to which you sustained damages quantifiable.

It can be a challenge to prove that a physician's standards are the same as another doctor's. This is why it is important to hire a law firm with access to expert witnesses who can testify about the medical field and what an experienced professional in your situation would have done.

It's not only doctors who commit medical errors, hospital staff members, such as nurses and anesthesiologists, also may be guilty of malpractice. This is especially the case for emergency room personnel where mistakes are often due to a crowded atmosphere and overworked personnel. Your attorney may be able to secure testimony from experts in the emergency department who can help demonstrate what could have been done and how the actions of your doctor did not meet this standard.

Discovery

During the discovery process during the discovery phase, your lawyer will gather and examine evidence that could prove a malpractice case. This includes medical records, witness statements expert testimony and more. The legal team representing the other side will also have the option to obtain this information from you and your attorney. This usually happens through interrogatories and requests for production of documents. Certain materials could be protected and confidential because of privacy laws, for instance HIPAA's Privacy Rule.

You must also prove that your injury is the result of the negligence of the doctor. This is the most difficult part of a case involving medical negligence, as it requires expert evidence to support your claim.

Your lawyer can also question witnesses who can prove the doctor was negligent. This could include assistants, nurses, radiologists, dentists and others who were involved in your treatment. Your lawyer will be adept in taking effective and convincing depositions to get these witnesses to admit that the doctor's negligence was a factor.

Most lawsuits are resolved, or settled, before they get to the trial stage. In medical malpractice cases, this is especially common as the costs of going to trial can be quite expensive. Once the facts of your case have been established, a settlement can be agreed upon between you and the insurer of your doctor. If a settlement isn't agreed upon, your case will go to trial.

Trial

After your attorney completes the initial investigation and concludes that you have a strong malpractice case, they will file the complaint. It will state clearly your allegations and must be served on the defendant along with a summons.

The next step is discovery. This includes the exchange of medical records and depositions of witnesses. Your lawyer will use these statements to establish your doctor's breach of the standard of care. The aim is to prove that the error resulted from the negligence of the doctor that caused damage.

Your medical malpractice attorney will also work with one or more expert witnesses to support your claim. These experts will be provided medical records and all the details about your case to prepare for their testimony and deposition. They may also help in the preparation of your case for trial.

As part of the trial preparation your attorney will begin settlement negotiations with the defense. This process continues throughout the case and can take up to several years. In this time, you are recovering from your injuries and determining how much of your losses. It is in everyone's best interests to settle the matter out of the court and avoid litigation as often as possible. Your lawyer will carefully evaluate the merits of any settlement offer with your current and future recovery. If the settlement offers are reasonable your lawyer will advise you to accept it.

Damages

During the process of discovery plaintiffs must demonstrate that their losses were substantial and that the negligence of the defendant caused those damages. For instance, if a doctor failed to inform the patient that a surgery had a 30% chance of losing a limb. If the procedure was carried out perfectly but the patient lost their arm and the medical professional could be held liable for malpractice.

To have a viable malpractice lawsuit, the person who is suing must also show that a competent lawyer could have been able avoid financial loss or at least reduce the amount. This is sometimes referred to as the "but for" test. It is also necessary to prove that the plaintiff has incurred expenses to pursue a legal claim, that is more than the amount sought in compensation.

Our medical malpractice attorneys can explain the various types of damages that can be given in a malpractice law firms lawsuit including past, current and future medical expenses, as well as loss of income, pain and discomfort, and other non-economic loss. In general, the more serious the injury, higher the amount of compensation. A verdict that is successful could be overturned through an appeal. Therefore, settling the case outside of court could be an advantageous option for a few clients. It will save money and time in court costs. It also eliminates the risk of having a jury making a decision based on emotions instead of facts.