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How to File a Medical Malpractice Lawsuit

Many medical malpractice lawsuits require a lot of time and resources from both physicians and lawyers. This includes attorney time, court fees, expert witness fees and other costs.

An injury resulting from medical professional's negligence, incompetence, error or omission can lead to medical malpractice claims. The injured party may be able to seek compensation damages, including actual economic losses, such as past and future medical bills as well as non-economic losses such as pain and suffering.

Complaint

A medical malpractice attorneys malpractice lawsuit has many moving parts and requires a solid evidence to succeed. The injured patient or their attorney should the patient die, must be able to prove each of these elements:

The defendant breached the duty. The defendant violated this duty. The breach directly caused injury to the plaintiff. This aspect of the malpractice claim is referred to as "causation." A breach of the standard of care doesn't cause injury; it must be proved that the breach directly caused the injury and was the primary cause of the injury.

It is typically required to file a complaint to a state medical board to protect the rights of the patient and ensure that the doctor doesn't commit additional negligence. A report is not a lawsuit but it can be a good first step in initiating the malpractice lawsuit. It is recommended to talk with a Syracuse malpractice attorney prior to making any report or other document.

Summons

As part of the legal process a summons or claim form is filed with the court and then handed to the defendant physician. A plaintiff's lawyer appointed by the court will go through these documents. If it appears there may be a malpractice case, the lawyer will file an affidavit and complaint with the court, detailing the alleged error.

The next step is to collect evidence through pretrial disclosure. This involves submitting documents such as hospital invoices and notes from the clinic, and then taking the defendant physician's deposition during which lawyers ask the defendant about his or their knowledge of the matter under the oath.

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

Discovery

During the discovery phase where both parties are permitted to request evidence relevant to their case. This includes medical records from prior to and after an incident of alleged negligence, information on experts, copies of tax return or other documentation related to expenses out of pocket the plaintiff claims have been incurred, and the names and contact details of witnesses who will be testifying at trial.

The majority of states have a statute of limitations that gives injured people some time after a medical mishap to bring a lawsuit. The time limit is set by the laws of the state and are subject to a regulation known as the "discovery rules."

To prevail in a medical malpractice lawsuit, a patient who has been injured must show that the doctor's negligence resulted in a specific injury, such as physical pain, or loss of income. They must also prove causation, i.e. that negligence caused their death or injury.

Deposition

Depositions are question-and-answer sessions that take place in the presence of a court reporter who records both the questions and answers. The deposition is a part of the discovery process in which the parties gather information to use in the trial.

Attorneys can pose a number of questions to witnesses, which are usually doctors. If a physician is interrogated, he or she must answer the questions truthfully under an oath. Usually the physician is asked questions by an attorney and then cross-examined by a different attorney. This is an essential stage of the case and requires the full attention and focus of the physician.

A deposition is an excellent way for attorneys to obtain an extensive background on the doctor, including his education, training and experience. This information is essential to prove that the doctor did not meet the standard of care you expect and resulted in injury to you. For example, physicians who have trained in the field of malpractice cases will typically declare that they have a vast experience in the execution of certain procedures and practices that could be relevant to a specific medical malpractice case.

Trial

Your lawyer will make a complaint to the court and a summons. This is the beginning of a legal disclosure process called discovery. You and your doctor's staff will work together to collect evidence to support your case. This typically includes medical records as well as testimony of an expert witness.

To prove malpractice it is necessary to prove that your doctor's actions were not in accordance with the standards of care. Your lawyer must convince the jury that your injuries could be avoided if your doctor had followed the standards of care. Your doctor's lawyers will present defenses that contradict the evidence presented by your attorney.

Despite the myth that doctors are targets for malpractice claims that are frivolous, decades of empirical research proves that jury verdicts tend to reflect fair assessment of damages and negligence, and that juries are skeptical of inflated damage awards. The vast majority of malpractice cases settle before trial.