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How to File a Medical Malpractice Lawsuit

Both physicians and lawyers must invest significant time and money in many medical malpractice lawsuits (simply click for source). This investment includes physician hours and work product as well as attorney time, court costs as well as expert witness fees and countless other expenses.

A serious injury that is the result of an healthcare professional's negligence, incompetence, error or omission can result in a medical malpractice claim. Victims of injury can seek compensation for financial losses, such as past or future medical bills, as well as noneconomic injuries, such as discomfort and pain.

Complaint

A medical malpractice case has many moving parts and requires reliable evidence to succeed. The injured party (or their attorney if they've passed away) must show each of these legal elements of the claim:

The defendant did not fulfill that duty. The defendant breached this duty. The breach directly caused injury to the plaintiff. This is referred to as "cause". A breach of a duty of care cannot directly cause injury. It must be demonstrated that it caused the injury directly and was the main reason for the injury.

It is typically necessary to file a complaint with a medical malpractice law firms board in the state in order to protect patients' rights and ensure that the doctor does not commit further errors. A report is not a lawsuit however, it is an excellent first step in beginning the process of bringing a malpractice claim. It is generally recommended to consult an Syracuse attorney for malpractice prior to filing a report or any other type of document.

Summons

As part of the legal process an order or claim form is filed with the court and then handed to the doctor who is the defendant. A plaintiff's lawyer who is appointed by the court will examine these documents. If it is determined that there is a malpractice case the lawyer will file an affidavit and complaint with the court, describing the suspected error.

The next step in the legal process is obtaining evidence through pretrial discovery. This includes the submission of requests for documentation like hospital billing and clinic notes, and taking depositions of the doctor who is defending the case. Attorneys will then ask the defendant under oath about the details of the case.

The plaintiff's attorney will use this evidence to prove the elements of a medical negligence claim at trial. The elements of a medical malpractice claim include the existence of a duty on the part of the doctor to provide care and treatments to patients, the doctor's infraction of this obligation, a causal link between the breach and the injury or death of the patient and an amount of damages sufficient to warrant a monetary award.

Discovery

During the discovery process both sides are allowed to request and receive evidence relevant to the case. This includes medical records from prior to and after an incident of alleged negligence, information on experts and tax returns or other documents related to expenses out of pocket the plaintiff claims have been paid, as well as the names and contact details of any witnesses who will be testifying at trial.

Most states have a statute-of-limitations that limits the length of time that a patient is allowed to claim compensation after suffering injuries due to a medical mistake. The time limit is set by state laws and are subject to a law known as the "discovery rules."

To win a medical negligence case the injured person must prove that a physician's negligence caused harm to a specific person for example, physical pain or loss of income. They must also prove causation, i.e. that the negligent treatment resulted in their death or injury.

Deposition

Depositions are questions and answer sessions that are conducted in front of a court reporter who documents both the questions and responses. The deposition is a part of the discovery process, in which parties gather information to use in a trial.

Depositions permit attorneys to ask witnesses, often doctors, a series of questions. When a physician is deposed and questioned, they must answer the questions truthfully under the oath. Usually, the physician is first asked questions by an attorney before being interviewed by another attorney. This is an essential stage of the case and requires the complete attention and focus of the physician.

A deposition can help attorneys gather a full background of the doctor's qualifications in relation to his or the training, education and experience. This information is crucial in showing that the doctor violated the standard of care you expect and caused injury. Physicians who have received training in this area often testify they have extensive knowledge of certain techniques and procedures that could be relevant to a specific medical malpractice case.

Trial

A lawsuit in a civil court is officially initiated when your lawyer files a complaint and summons with the appropriate court. This is the beginning of the legal disclosure process known as discovery. Your doctor and your team will collaborate to gather evidence to prove your case. This usually includes medical records and testimony of an expert witness.

To prove malpractice you must prove that your doctor's actions were below the standard of care. Your lawyer must convince jurors that it is more likely than not that your injuries would not have occurred had your doctor acted according to the standard of care. Your doctor's lawyer will offer defenses which contradict the evidence presented by your lawyer.

Despite the belief that doctors are targets for frivolous malpractice claims decades of research on the subject shows that jury verdicts generally reflect fair assessment of damages and negligence and juries are skeptical of excessive damage awards. The vast majority malpractice cases are settled before trial.