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Medical Malpractice Litigation

Medical malpractice litigation is complex and time-consuming. It is also expensive for both plaintiff and defendant.

In order to obtain monetary compensation in a malpractice lawsuit, an injured patient must show that substandard medical care caused injury. This requires establishing four legal elements that include a professional duty and breach of duty inflicting injury, and the resulting damages.

Discovery

The most important aspect of a medical negligence lawsuit is gathering evidence. This can be done via written interrogatories, or requests for documents. Interrogatories require to be answered under oath by the opposing party to the lawsuit and are used to establish the facts to be used in trial. Requests for documents to be produced allow for tangible items to be retrieved such as medical malpractice law firms records or test results.

In many cases, your attorney will take the defendant physician's deposition which is recorded as a question and answer session. This allows your attorney to ask the witness or doctor questions that might not be permitted at trial. It can be extremely useful in cases with expert witnesses.

The information collected during pretrial discovery is used in trial to establish the following elements of your claim:

Breach of the standard of care

The injury is caused by the violation of the standard of care

Proximate causation

A doctor's failure to apply the level of competence and expertise of physicians in their field of specialty and that proximately caused injury to the patient

Mediation

Medical malpractice trials are necessary, but they also have many drawbacks. For plaintiffs they are stressed, and the expense, and the time commitment associated with a trial can cause psychological harm on them. A trial can cause embarrassment and a loss of status for health professionals who are defendants. It can also have detrimental effects on their career as well as practice, since the monetary payments they receive as part of settlements before trial are reported to national databases for practitioners as well as the state medical licensing board and the medical societies.

Mediation is a less costly, time-efficient, and risk-effective method to settle the medical malpractice case. Eliminating the expense of a trial and avoiding potential weakening jury verdicts, allows both parties to be more flexible in their settlement negotiations.

Before mediation, both parties are required to provide the mediator with brief details about the case (a "mediation brief"). The parties will often let their communications go through their lawyer instead of directly between themselves at this point because direct communications could be used against them later in court. As the mediation process progresses, it is best to focus on the strengths of your case and be ready to admit its weaknesses as well. This will allow the mediator to fill any gaps and give an acceptable offer.

Trial

The aim of reformers in tort law is to develop a system that compensates those who have been injured by medical negligence in a timely manner and without excessive cost. While this is a challenge, many states have implemented tort reform measures in order to lower costs and prevent frivolous medical malpractice claims.

Most physicians in the United States carry malpractice insurance to safeguard themselves against accusations of professional negligence in medical cases. Certain policies may be required by a hospital or medical group as a condition of privileges.

To be compensated for injuries caused due to a medical practitioner’s negligence, the patient who has suffered injury must prove that the doctor did not meet the standards of care applicable to his or her profession. This concept is known as proximate cause and is an essential element of an action for medical malpractice.

A lawsuit is initiated when a civil summons is filed in the court of your choice. After that the parties have to engage in a disclosure process. This involves written interrogatories and the issuance of documents, including medical record. Also, depositions (deponents are questioned by attorneys under oath) and admission requests which are statements made by one side that the other would like the other to admit in total or in part.

In a medical malpractice case the burden of proof is high. Damages are awarded based upon both economic losses (such as lost income or the cost of future medical treatments) as well as non-economic damages such as discomfort and pain. It is essential to work with an experienced lawyer when you are you are pursuing a medical negligence claim.

Settlement

Settlements are the most commonly used way to settle medical malpractice lawsuits. In general, the actual dollar value of a case is negotiated between the plaintiff and the defendants (often through or alongside the defendant's malpractice/professional liability insurer). The result is an amount for the injured patient, which is given to the lawyer of the plaintiff who then deposits the check into an escrow account. The attorney then deducts case costs and legal fees according to the representation agreement, and provides the injured person with payment.

In order to prevail in a medical malpractice lawsuit, the patient who has suffered must prove that a physician or other healthcare provider was bound by a duty of care, but violated that duty by failing use the appropriate degree of knowledge and competence in their field, and that as a proximate result of that breach, the victim sustained injuries, and that these injuries are measurable in terms of monetary loss.

The United States has a system of 94 federal district courts which are similar to state trial courts. each court has an appointed judge and jury panel which decides on cases. In certain instances, a medical negligence case may be transferred to one of the federal district courts. In the United States, physicians carry medical malpractice insurance to safeguard themselves from claims of unintentional harm. Doctors must be aware of structure and operation of our legal system in order to be able to react appropriately in the event of there is a case brought against them.