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How to File a Medical Malpractice Lawsuit

Bringing a medical malpractice suit against a doctor or hospital must prove that the defendant acted in breach of his or her duty to patients. This evidence could include medical and hospital documents.

Our lawyers have experience taking effective depositions of witnesses. They could be doctors or other medical professionals in private practice, or working at a clinic or hospital.

Negligence

Patients have a right to be treated with respect to certain standards when they visit a doctor, hospital, or health care professional. Unfortunately they aren't always met or even violated. This breach could have devastating results.

A lawsuit can be filed against a medical professional when a patient is injured or dies due to the malpractice of that doctor. To have a valid claim, the injured patient must prove that there are four legal elements present in the case: breach of duty, causation, and damages.

Malpractice is defined as an act or omission by an individual physician that is in violation of the accepted norms of medicine in the medical community, and can cause injury to the patient. It is a subset of tort law that deals with civil wrongs that do not fall under contractual duties or criminal offenses.

Medical negligence differs from normal negligence in that the victim must prove that the physician was aware that their actions would cause harm to assert malpractice, however normal negligence does not. For example a surgeon who accidentally cuts a vein or nerve during surgery could be in the wrong of negligence, but not malpractice because the doctor was not aiming to cause harm.

In an instance of medical malpractice, the defendant's duty is to treat the patient in line with the standard of care that a prudent health care professional of similar experience and expertise could provide in similar situations. The violation of this duty is an essential aspect since it shows that the alleged negligence caused the injury.

Damages

In a malpractice case, damages are determined based on the losses you have suffered due to a physician's negligence. This can include both financial losses, including future medical expenses, as well as non-economic losses like discomfort and pain.

To recover damages, you must show that the doctor violated a duty of care, that the physician's deviation from that standard resulted in injury, and the injury was measurable in terms of financial consequences. This is a complex legal analysis that typically requires expert witness testimony.

Some of these losses are evident for instance, if your doctor made an error that caused an infection or other medical problem and you required further treatment in the aftermath. Other losses are not as apparent, such as when your doctor misdiagnoses you and you are unable to get the correct treatment.

If your doctor's malpractice leads to your death then you can sue for wrongful death. You can seek punitive damages in addition to the compensation you would receive in a survival suit.

In the majority of states, there is a limit on the amount you can be awarded in a malpractice case. The caps differ from state to state, and are typically applicable to both economic and other damages. Certain states have laws that limit the time you have to wait before filing an action.

Time Limits

As with any lawsuit there are deadlines that must be adhered to, or the case could be thrown out. In general, a malpractice lawsuit must be filed within two to six months of the occurrence of medical malpractice. The deadline varies according to state.

The time limit is complicated and it is important to consult an attorney right away. The law firm will conduct an investigation to determine if malpractice attorneys has occurred and if it will hold up in the court. This phase can last for weeks or even months.

Medical malpractice cases are governed by different laws and the statute of limitation is frequently altered. For instance in Pennsylvania the patient has to file a claim within two years of the date they discovered the malpractice or the date a reasonable person would have known that the harm existed. This is known as the discovery rule.

In other states the statute of limitations begins at the time the malpractice happened. This is an issue when the mistake is not immediately causing symptoms. Imagine, for instance that a doctor has negligently left a foreign object in the body of a patient following surgery. The patient may not discover the foreign object until three or more years after the surgery. In that case the statute of limitation could have begun to run from the date of the procedure, not the moment the error was discovered.

Expert Witnesses

Expert witnesses are frequently required to explain facts in medical malpractice cases. The expert of the plaintiff will testify regarding the doctor's duty to the patient, the medical standards for doctors who have similar qualifications in the field and specialization, and the ways that the defendant's actions were contrary to those standards. The expert will describe why the defendant's omission directly impacted the patient's injuries.

The defendant will employ an expert to challenge the plaintiff's expert and give their professional opinion as to whether the doctor's treatment was consistent with standards of care. It is normal for experts to disagree with one and yet the factfinder determines who is the most reliable based on their education and experience.

It is better for the expert to be working in the medical field, as they will have a greater understanding of current practice. Jurors and judges typically consider practicing professionals more believable than experts whose only source of income is testifying in court.

It is also better to have an expert who specializes in the area of malpractice. For example a medical professional who is knowledgeable about treating breast cancer can provide an argument that is more convincing about the reason for an injury suffered by a plaintiff. An experienced Ocala medical malpractice attorney will know which experts to consult for your case.