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How to File a Medical Malpractice Lawsuit

In order to bring an action for medical malpractice against a doctor or a hospital you must establish that the defendant has violated their duty to patients. This evidence could include hospital and medical records.

Our lawyers are skilled at taking depositions that are effective for witnesses. These may be doctors or other medical professionals in private practice, or employees at a hospital or clinic.

Negligence

Patients are entitled to receive certain standards of care when they visit a hospital, doctor or health care professional. Unfortunately these standards aren't always met or even complied with. This breach can have devastating results.

A lawsuit can be brought against a medical professional if the patient is injured or dies due to the malpractice of the physician. To have a valid case the patient who has been injured must prove four legal elements that include breach of duty, breach of duty, causation and damages.

Malpractice is described as an act performed by the doctor that is against the accepted norms in the medical profession and results in harm to the patient. It is an aspect of tort law which covers civil wrongs that do not fall under contraindicated by law or are criminal offenses.

Medical negligence differs from normal negligence in that the party who suffers has to demonstrate that the doctor was aware, or ought to have known, that their actions were going to cause harm before they can claim malpractice. Normal negligence doesn't. A surgeon who accidentally cuts or nicks a vein or nerve during surgery is guilty of negligence but not malpractice. This is because the surgeon didn't intend to cause harm to anyone.

In a lawsuit for medical malpractice the defendant is bound by an obligation to treat the patient according to the standards of care that a reasonably competent healthcare professional with comparable experience and education in similar circumstances could provide. The violation of this duty is a critical aspect because it proves that the alleged negligence caused the injury.

Damages

In a case of malpractice, damages are determined based on the losses you have suffered due to a physician's negligence. They can be a combination of financial loss, like the cost of future medical expenses as well as non-economic losses like pain and suffering.

In order to recover damages, it is necessary to show that a doctor has violated the law, that his deviation from the standard of care caused injury, and the injury resulted in measurable financial costs. This is a complex legal analysis that typically requires expert witness testimony.

Some of these losses are obvious, such as if your doctor made a mistake that led to an illness or other medical issue that required additional treatment in the aftermath. Other damages aren't as evident, like when your doctor has misdiagnosed you and you aren't able to receive the right treatment.

If a medical professional's negligence leads to your death, you can sue for the wrongful death. You can claim punitive damages in addition to the compensation you'd receive in a survival lawsuit.

In most states, there are limitations on the amount you can recover in a malpractice case. These caps vary state-to-state and usually apply to both economic and non-economic damages. Certain states also have rules that restrict the time you have to wait to bring a lawsuit.

Time Limits

As with all lawsuits, there are specific time limits that must be observed or the case may be barred. Generally speaking, a malpractice lawsuit must be filed within two to six years from the medical malpractice occurring. The deadline for filing a malpractice lawsuit varies from state to state.

The time limit is complex, and it is crucial to consult an attorney right away. The law firm will conduct an investigation to determine if any malpractice occurred and if it will hold up in court. This process takes several weeks or even months.

Medical malpractice cases are governed by different laws than other types of cases and often the statute of limitations is extended. In Pennsylvania, a patient has two years from the time that they were aware of the error. This is known as the discovery rule.

In other states the statute of limitations begins at the time the malpractice occurred. This is a problem if the medical mistake does not trigger any immediate symptoms. For example, suppose the doctor is negligently leaving an object that is foreign in the body after surgery. The patient might not find the object until three years after the procedure. In that case the statute of limitation could have start running from the date of the procedure instead of the moment of discovery of the error.

Expert Witnesses

Many medical malpractice cases rely on experts to clarify the facts of the case. The expert of the plaintiff will testify regarding the doctor's duty to the patient, the medical guidelines for doctors who have similar qualifications in their area and specialty and the ways in which the defendant's conduct was different from the standard. The expert will also explain how the departure directly led to the injury of the patient.

The defendant will hire a professional to counter the plaintiff's expert and give their professional opinion about whether the doctor's treatment was consistent with guidelines of care. The experts could disagree however the fact-finder determines which expert is the most trustworthy.

It is advisable for the expert to be working in the medical field because they are more knowledgeable about current practices. Jurors and judges tend to believe that practicing professionals are more trustworthy than experts who solely rely on the testimony of a court.

It is also advisable to hire an expert witness who has expertise in the field of malpractice. For example a medical professional who is proficient in dealing with breast cancer can present a an argument more convincing regarding the reason for an injury suffered by a plaintiff. An experienced Ocala medical malpractice attorney will be aware of the experts to contact for your case.