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How to File a Medical Malpractice Lawsuit

Bringing a medical malpractice suit against a hospital or doctor requires proof that the defendant violated his or her duty to patients. This evidence could be a medical and hospital records.

Our attorneys have a wealth of experience in conducting effective depositions. They could be doctors, other medical professionals in private practice, or employees at a clinic or hospital.

Negligence

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

When someone is injured or death as a result of a physician's malpractice, they may pursue a lawsuit against the medical professional. To have a valid claim, the patient must prove that four legal elements exist in the case: breach of duty, causation and damages.

Malpractice can be defined as an action by the doctor that is against the norms of the medical profession and results in harm to a patient. It is a subset of tort law which covers civil wrongs that are not contraindicated by law or are criminal offenses.

Medical negligence differs from regular negligence in that the person who is injured must show that the doctor was aware or ought to have known that their actions would cause harm to assert malpractice, however normal negligence is not required. A surgeon who accidentally cuts or nicks a vein or nerve during surgery is guilty of negligence, but not negligence. This is because the surgeon did not intend to harm anyone.

In the case of medical negligence the defendant's responsibility is to provide the patient with the standard of care a competent health professional with similar experience and training would provide in similar circumstances. The breach of this duty is a critical element because it demonstrates that the alleged negligence caused the injury.

Damages

The damages you incur in a case of malpractice are in relation to the losses you have suffered as a result of the negligence of a physician. This can include both financial loss such as the costs of future medical treatment as well as non-economic losses like pain and suffering.

In order to recover damages, you need to establish that a doctor acted in violation of the law and that his violation of the standard of care caused injuries, and that the injury had quantifiable financial consequences. This is a complex legal analysis that usually requires expert witness testimony.

Some of these losses are obvious for instance, if a doctor made an error that led to an illness or other medical issue that required additional treatment due to the result. Some damages are more difficult to detect, such as when doctors misdiagnose your condition and you don't receive the proper treatment.

If a medical professional's negligence results in your death then you can sue for wrongful death. In these cases, you are legally entitled to all the compensation you would have gotten in a lawsuit for survival, plus punitive damages.

In most states, there are limitations on the amount you can recover in a legal case. These caps vary state-to-state and are usually applicable to both economic and non-economic damages. Certain states have laws that limit the time you can delay before filing a lawsuit.

Time Limits

As with all lawsuits, there are specific deadlines that must be observed or the case will be barred. A malpractice lawsuit should generally be filed between two and six years after the malpractice occurred. The time limit differs by state.

The time frame can be complicated and it is important to consult a lawyer right away. The law firm will conduct an investigation to determine if any malpractice was committed and if it could be found to be valid in court. This phase can last for weeks or even months.

Medical malpractice cases are governed by different laws and the statute of limitations is often altered. For example, in Pennsylvania the patient has to submit a claim within two years of the date they were aware of the malpractice, or the date a reasonable person would have recognized that the harm existed. This is known as the discovery rule.

In other states, the statute of limitations begins to run from the date the malpractice occurred. This can be an issue if the medical error does not cause immediate symptoms. Imagine, for instance that a doctor negligently left a foreign object in the body of the patient following surgery. The patient may not discover the foreign object until three or more years after the surgery. In this case, the statutes of limitations could have been at the time of the surgery, not the discovery of error.

Expert Witnesses

A lot of medical malpractice cases rely on expert witnesses to explain the facts of the case. The expert of the plaintiff will testify on the doctor's duty to the patient, medical requirements for doctors who have similar qualifications in the same area and field, and the ways that the defendant's actions were contrary to the standards. The expert will explain how the deviance directly led to the injury of the patient.

The defendant will contract an expert to challenge the plaintiff's expert and provide their professional opinion as to whether the doctor's treatment was consistent with standards of care. The experts may disagree but the fact-finder is the one who decides which expert is most credible.

It is recommended for the expert to be still working in the medical field since they are more knowledgeable about the current practices. Judges and jurors typically consider practicing professionals more believable than experts whose only source of income is the testifying in court.

It is also beneficial to use an expert witness who specializes in the area of the malpractice. A medical expert who has experience treating breast cancer, for instance, could present a an argument convincingly as to the cause of an injury. A seasoned Ocala medical malpractice attorneys attorney will be aware of the experts to call for your case.