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How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits can be a bit complicated. There are certain guidelines to be followed, which include a time limit within which the lawsuit can be filed.

In addition to showing negligence, the claimant must prove that the doctor's actions resulted in losses and injuries. This will require medical and hospital documents.

Complaint

After your attorney's investigation has discovered evidence of malpractice occurred, the attorney will file a complaint in court and issue a summons. The complaint will identify the defendants, and then state the allegations you bring against them.

Malpractice claims are based upon the belief that nurses, doctors, or other healthcare providers are obligated to a patient the highest standard of care. This standard is defined as the degree of care and skill that a reasonable medical professional with the same training would exercise in similar circumstances. Your legal team must to show that your doctor did not meet this standard that resulted in injuries due to which you sustained damages quantifiable.

It can be challenging to prove that a physician's standards are the same as another doctor's. This is why it's crucial to choose a law firm that has access to experts who can provide testimony about the medical field and what reasonable professionals in the same situation as your doctor would have done.

Not only doctors make mistakes, but so do hospital personnel, such as nurses and anesthesiologists. This is especially relevant to emergency room personnel where mistakes are frequently due to a crowded environment and overworked employees. Your lawyer may be able to secure testimony from experts in the emergency department that can assist in proving what could have been done and why your doctor's actions fell short of this standard.

Discovery

During the discovery stage your lawyer will collect and review evidence that could be used to support a malpractice claim. This includes medical documents, witness statements, expert testimony and more. This information can also be requested by the opposing legal team. This is typically done via inquiries and requests for production of documents. However, certain materials may be classified as confidential or privy due to privacy laws such as HIPAA and its Privacy Rule.

You must also prove your injury is due to the doctor's negligence. This is the most difficult part of a medical malpractice case, as it requires expert testimony to support your claim.

Your lawyer will also call witnesses that can prove that the doctor was negligent. This includes radiologists, dentists as well as nurses, assistants and other personnel who were involved in the care of your health. Your lawyer will know how to conduct effective and strong depositions to ensure that these witnesses accept that the doctor was negligent.

The majority of lawsuits are settled prior to trial. In cases involving medical malpractice attorneys it is a common practice since the cost of going to trial can be quite expensive. Once the facts are established then you can negotiate a settlement with the insurer of the doctor. If a settlement isn't possible your case will proceed to trial.

Trial

Your attorney will file a complaint following completing the initial investigation. If they find that you have a compelling case for malpractice, then they will file the complaint. The complaint will be clear in its allegations and must be delivered to the defendant in a summons.

The next phase is discovery. This involves the exchange of medical records and depositions from witnesses. Your lawyer will use these evidence to show that your doctor violated the standard of care. The goal is to prove that the error was a result of the doctor's negligence and resulted in damages.

Your medical malpractice lawyer will also work with one or more expert witnesses in support of your claim. These experts will receive medical records and specific information regarding your case, to prepare for their depositions and testimonies. They may also help in the preparation of your case for trial.

Your lawyer will begin discussions on settlement with the defense during the trial preparation. This process continues throughout the trial, and can last for many years. During this time, it is important that you are recovering from your injuries and determining the magnitude of your losses. If possible, it's in everyone’s best interest to avoid litigation and settle outside of court. Your lawyer will carefully evaluate the merits of any settlement proposal with your current and potential recovery. If the settlement is reasonable then your lawyer will be able to convince you to accept it.

Damages

During the discovery phase, plaintiffs will need to prove that their losses are significant and that the negligence of the defendant has caused these damages. For instance, if a doctor failed to inform the patient that the surgery carried a 30 percent chance of losing a limb. If the procedure was done correctly but the patient lost their arm in the process, the medical professional could be held accountable for malpractice.

A victim can also prove that a competent lawyer could have prevented or minimized the financial loss. This is commonly referred as the "but for" test. It is also important to show that the plaintiff has paid for expenses in pursuit a successful legal claim, which is greater than the amount sought in compensation.

Our medical malpractice lawyers are able to provide a detailed explanation of the various types of damages that could be suffered in a malpractice lawsuit including past, present and future medical expenses loss of income, suffering and other non-economic losses. The more money you are awarded is, the more serious injury. However, a successful verdict can sometimes be overturned upon appeal. Settlements outside of court can be beneficial to some clients. It can save money and time in court costs. It also avoids the risk of a juror choosing a case based on emotions rather than facts.