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How to File a Medical Malpractice Lawsuit

Both lawyers and physicians must spend a significant amount of time and money in numerous medical malpractice lawsuits. This can include physician hours and work product and attorney time, court costs as well as expert witness fees and countless other expenses.

A serious injury that is the result of a healthcare professional's negligence, incompetence, error or omission could result in medical malpractice claims. Injury victims may seek compensatory damages, including actual economic losses such as past and future medical bills as well as non-economic expenses like pain and suffering.

Complaint

A medical malpractice lawsuit is made up of many moving parts and requires a solid evidence to be successful. The injured patient (or their attorney if they've passed away) must prove each of the following legal aspects of the claim:

The defendant did not fulfill that obligation. The defendant violated this duty. That the breach directly caused injury to the plaintiff. This is referred to as "cause". A breach of a standard of care cannot necessarily cause injury. It must be proved that it caused the injury directly and was the primary reason for the injury.

To safeguard a patient's rights, and to ensure that a physician does not commit further mistakes, it is essential to file a report with the state medical board. However, filing a claim does not initiate the process of a lawsuit, and is typically just a step towards moving the malpractice claim. It is recommended to talk with a Syracuse malpractice attorney prior to making any report or other 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 who is appointed by the court will go through these documents. If it appears there is a malpractice issue the lawyer will file an affidavit and complaint with the court, detailing the claimed error.

The next step in the legal process is to obtain evidence through pretrial discovery. This includes making requests for evidence including hospital billing and clinic notes, and taking depositions of the defendant's doctor. Attorneys will then ask the defendant on oath about his or her knowledge regarding the case.

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

Discovery

During the discovery process, each side is entitled to request and receive evidence that is relevant to the case. This includes Medical Malpractice Law Firm records from prior to and after an incident of negligence, information on experts, copies of tax return or other documentation relating to out-of pocket expenses that the plaintiff claims to have attributable to them, and the names and contact information of any witnesses who will be testifying during the trial.

The majority of states have a statute of limitations that restricts the amount of time a patient can sue after being injured by an error made by a doctor. These limitations are set by the laws of the state and are subject to a rule called the "discovery rules."

In order to win a medical malpractice claim the patient who was injured must show that a doctor's negligence caused harm to a specific person that is physical pain or loss of income. They must also prove causation- that is, that the negligent treatment was directly responsible for their injuries or death.

Deposition

Depositions are question and answer sessions that are conducted in front of a court reporter who records both the questions as well as the answers. Depositions are a part of the discovery process in which the parties collect evidence to be used in the trial.

Attorneys can ask a series questions to witnesses, mostly doctors. If a doctor is interrogated and asked to answer questions truthfully under oath. Usually, the physician is asked questions by one attorney, and then cross-examined by a different attorney. This is an essential stage of the process and requires the complete concentration and attention of the physician.

Depositions are a great way for attorneys to obtain an extensive background on the doctor, including his or the doctor's education, training and experience. This information is crucial to establish that the doctor violated the standards of care in your case and that the breach caused you injury. For example, physicians who have been trained in the field of malpractice cases typically will testify that they have vast experience performing certain procedures and methods that may be relevant to a particular medical malpractice case.

Trial

A civil court is officially initiated when your lawyer lodges a complaint and a summons with the court of your choice. This begins a legal disclosure process called discovery. You and your doctor's team will work together in order to gather evidence that can prove your case. This usually includes medical records and testimony from an expert witness.

The goal of proving malpractice is to establish that your doctor's actions fell short of the standard of care. Your lawyer must convince a jury that it is more likely than not your injuries would not have occurred if your physician acted according to the standard of care. Your doctor's lawyer will offer defenses which contradict the evidence presented to you by your lawyer.

Despite the common belief that doctors are the target of fraudulent malpractice claims the decades of evidence show that jury verdicts reflect fair assessment of the severity of the damage and negligence and that juries are skeptical of large amounts of money awarded. The vast majority of malpractice cases settle prior to trial.