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How to File a Medical Malpractice Lawsuit

Both lawyers and physicians must invest considerable time and funds in many medical malpractice lawsuits. This includes doctor hours and work product attorneys' time court costs and expert witness fees and many other costs.

A medical malpractice lawsuit can be filed in the event that a healthcare professional has been negligent or has committed misconduct or erred, or failed to take action. Injury victims may seek compensatory damages, which include economic loss, such as the future and past medical bills, as well as non-economic damages like pain and suffering.

Complaint

A medical malpractice attorney malpractice case is a complicated one and requires proof of credibility for success. The injured patient (or their attorney if they have died) must demonstrate each of the following legal aspects of the claim:

A hospital or doctor had a responsibility to perform its duties in accordance with the applicable standard of care. The defendant breached this duty. The breach directly caused injury to the plaintiff. This aspect of an action for malpractice is called "causation." A breach of the standard of care doesn't cause injury; however, it must be proved that the breach directly caused the injury and was the primary cause of the injury.

To ensure the rights of patients, and to ensure that a physician doesn't commit any further wrongdoing, it's necessary to file a claim with the state medical board. But, filing a report does not start a lawsuit and is often only a first step in getting the malpractice case moving. It is often best to speak with a Syracuse attorney for malpractice prior to filing a report or any other document.

Summons

As part of the legal process a summons or claim forms is filed with the court, and then delivered to the defendant doctor. A plaintiff's lawyer appointed by the court will look over these documents. If it appears that there could be a malpractice claim the lawyer is required to file an affidavit and a complaint with the court, describing the alleged mistake.

The next step is to gather evidence through pretrial disclosure. This involves submitting requests to document such as hospital billing information and clinic notes and taking the defendant's deposition where lawyers question the defendant on his or their knowledge of the matter under an oath.

This information will be utilized by the lawyer representing the plaintiff to establish the elements of a claim for medical malpractice at trial. The elements of a medical malpractice claim include the existence of a duty on the part of the doctor to provide medical and treatment to patients, the doctor's failure to fulfill this duty as well as a causal connection between the breach and injury or death of the patient and a sufficient amount in damages to warrant a monetary compensation award.

Discovery

During the process of discovery, each side is entitled to ask for and receive evidence that is relevant to the case. This includes medical records from prior to and after an incident of negligence, details about experts and tax returns or other documents related to out-of pocket expenses that the plaintiff claims have been attributable to them, and the names and contact details of witnesses who will be testifying during the trial.

Most states have a statute-of limitations which limits the amount of time a patient has to claim compensation after suffering injuries due to a medical mistake. The time limit is set by the laws of the state and are subject to a rule known as the "discovery rules."

To prevail in a medical malpractice lawsuit, an injured patient has to demonstrate that the negligence of the doctor caused specific harm, like physical pain or loss of income. They must also prove causationwhich means that the negligent treatment was directly responsible for their injuries or death.

Deposition

Depositions are questions-and-answer sessions that take place in presence a court reporter, who is able to record the questions as in the responses. Depositions are part of the discovery procedure, which involves gathering information that can be used in the trial.

Depositions permit attorneys to ask witnesses, typically doctors to answer a series of questions. When a doctor is questioned they must answer all questions truthfully under an oath. Usually, the physician is questioned questions by one attorney and then cross-examined by another attorney. This is a crucial stage of the case that requires the complete attention and focus of the physician.

A deposition is a great way for attorneys to obtain an extensive background on the doctor, including his or her training, education and experience. This information is crucial to proving that the physician breached the standards of care in your situation and that the breach caused you harm. Physicians who have received training in this area often declare that they have experience in performing certain procedures and techniques that could be relevant to an individual medical-malpractice case.

Trial

A civil court is launched when your lawyer is able to file a complaint as well as a summons with the court of your choice. This begins a legal process of disclosure, also known as discovery, where you and the doctor's team work together to gather information to prove your case. This typically consists of medical records and the testimony of expert witnesses.

To prove malpractice you must prove that your doctor's actions were below the standard of care. Your lawyer must convince a jury that it is more likely than not that your injuries could not have occurred had your doctor followed the standards of care. Your doctor's lawyer will present defenses which contradict the evidence presented by your lawyer.

Despite the myth that doctors are a target for frivolous malpractice claims, decades of empirical research shows that jury verdicts tend to reflect reasonable assessment of damages and negligence, and that juries are skeptical of overinflated damages awards. The vast majority malpractice cases are settled before trial.