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How to File a Medical Malpractice Lawsuit

Lawyers and doctors must invest significant time and money in numerous medical malpractice lawsuits. This includes doctor hours and work product as well as attorney time, court costs as well as expert witness fees and countless other expenses.

A medical malpractice claim can be filed if a healthcare professional is negligent or has committed misconduct or committed a mistake or failed to take action. Plaintiffs seeking compensation for injuries can file for economic losses, like future or past medical malpractice attorney expenses, as well as noneconomic injuries, such as pain and discomfort.

Complaint

A Medical malpractice Attorneys malpractice case has many moving parts and requires credible evidence to be successful. The injured patient, or their attorney should the patient die, must prove each of these legal elements:

The defendant breached that duty. That the defendant breached that duty. The breach directly caused injury to plaintiff. This is referred to as "cause". A breach of a duty of care does not directly cause injury. It must be proved that it caused the injury directly and was the main reason for the injury.

It is usually necessary to file a claim with a medical board in the state in order to safeguard the rights of the patient and to ensure that the doctor does not commit any further malpractice. A report is not a lawsuit, but it can be the first step to starting the malpractice claim. It is best to consult an Syracuse malpractice attorney prior to filing any report or document.

Summons

As part of the legal procedure, the summons or claim form is filed with the court and delivered to the doctor who is the defendant. A plaintiff's lawyer appointed by the court will examine these documents. If it appears there could be a malpractice claim the lawyer will file an affidavit and complaint with the court, detailing the alleged mistake.

The next step in the legal process is obtaining evidence through pretrial discovery. This involves submitting requests for documentation like hospital billing records and clinic notes and taking the defendant's deposition during which lawyers ask the defendant on his or his knowledge of the case under an oath.

This information will be used by the attorney representing the plaintiff to prove the elements of a claim for medical negligence at trial. This includes the existence of an obligation on the doctor's part to provide care and treatment to patients; the physician's breach of this duty; causality between the breach and the patient's injuries or death and a significant amount of damages resulting from the death or injury to be able to justify a monetary compensation.

Discovery

During the process of discovery, both sides are entitled to request and receive evidence that is relevant to the case. This includes medical records from prior to and after an incident of negligence, information on experts as well as copies of tax returns or other documentation related to expenses out of pocket that the plaintiff claims to have incurred, and the names and contact information of witnesses who will testify at trial.

Most states have a statute of limitation that permits injured patients an amount of time after an injury or medical mistake to pursue a lawsuit. Those time limits are usually set by law of the state, and they are subject to a rule known as the "discovery rule."

In order to win a medical negligence lawsuit, the patient has to demonstrate that the negligence of the doctor caused specific harm, such as physical pain, or loss of income. They must also prove causation, i.e. that the negligent treatment led to their injury or death.

Deposition

Depositions are question-and-answer sessions which take place in the presence of a court reporter who records the questions as well as the answers. Depositions are part of the discovery process which is about gathering information that can be used in a trial.

Attorneys can pose a number of questions to witnesses, typically doctors. If a doctor is interrogated and questioned, they must answer all questions honestly under the oath. Typically, the doctor is first questioned by an attorney and later the attorney is cross-examined by another attorney. This is an important stage of the case that requires the full attention and focus of the doctor.

A deposition is a way for attorneys to gather a full background of the doctor in terms of his or the training, education and experience. This information is crucial to prove that the doctor did not meet the standard of care you expect and caused you injury. For instance, doctors who have completed training in the area of malpractice cases usually affirm that they have extensive experience in performing certain procedures and techniques that may be relevant to a particular medical malpractice case.

Trial

Your lawyer will submit a complaint to the court, along with a summons. This begins a legal process of disclosure called discovery, where you and your doctor's team work together to gather evidence to support your case. This usually includes medical records and testimony from expert witnesses.

To prove malpractice you must prove that the doctor's actions did not meet the standards of care. Your lawyer must convince jurors that it is more likely than not your injuries would not have occurred had your doctor acted according to the standard of care. The lawyer representing your doctor will argue arguments that are contrary to the evidence presented to you by your attorney.

Despite the common belief that doctors are the target of frivolous claims of malpractice years of evidence demonstrate that jury verdicts are based on reasonable assessments of damages and negligence, and that juries are skeptical of inflated award amounts. The vast majority of malpractice cases settle prior to trial.