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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 attorneys. This includes doctor hours and work product and attorney time court costs and expert witness fees and countless other expenses.

An injury resulting from a healthcare professional's negligence, mistake, or omission could result in a medical malpractice claim. Injury victims may seek compensatory damages, including actual economic loss such as past and future medical bills, as well as non-economic losses such as pain and suffering.

Complaint

A medical malpractice case is a complicated one and requires a solid proof of the claim for success. The patient who has been injured or their attorney, if the patient has died must demonstrate each of these legal elements:

The defendant breached the duty. The defendant erred in his obligation. The breach directly caused injury for the plaintiff. This element is known as "cause". A breach of a standard of care cannot directly cause injury. It must be proved that it caused the injury directly and was the primary cause for the injury.

It is often necessary to file a complaint with a state medical board to protect the patient's rights and ensure that the doctor doesn't commit any further errors. A report is not a lawsuit, but it can be the first step to beginning the process of bringing a malpractice claim. It is recommended to speak with an Syracuse attorney for malpractice prior to making a report or other document.

Summons

As part of the legal procedure, a summons or claim forms is filed with the court and then handed to the defendant doctor. A plaintiff's lawyer appointed by the court will examine these documents. If it is determined that there is a malpractice issue the lawyer is required to file an affidavit and complaint with the court, detailing the suspected mistake.

The next step is to obtain evidence by pretrial disclosure. This involves submitting documents such as hospital invoices as well as notes from clinics and taking the defendant physician's deposition during which lawyers ask the defendant about his or his knowledge of the situation under the oath.

The information provided will be used by the lawyer for the plaintiff to establish the elements of an action for medical malpractice in the course of trial. The elements of a medical malpractice case include the existence of a duty on the part of the physician to provide care and treatments to patients, the physician's breach of this duty as well as a causal connection between the breach and injury or death of the patient, and a sufficient amount in damages to warrant a monetary award.

Discovery

During the discovery phase, both parties are allowed to request any evidence relevant to their case. This includes medical malpractice lawyers records prior to and after an incident of negligence, information regarding experts and tax returns or other documents relating to expenses out of pocket that the plaintiff claims to have attributable to them, and the names and contact information of witnesses who will be testifying in the trial.

Most states have a statute-of-limitations that limit the time a patient has to pursue a lawsuit after being injured due to an error made by a doctor. These time limits are typically set by law in the state, and are subject to rules known as the "discovery rule."

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

Deposition

Depositions are question and answer sessions that are conducted in the presence of an official court reporter who records both the questions as well as the responses. Depositions are part of the discovery process through which the parties collect evidence to use in a trial.

Depositions permit attorneys to ask witnesses, typically doctors for a series of questions. When a doctor is questioned, they must answer all questions honestly under oath. Usually, the physician is questioned questions by one attorney, and later cross-examined by a second attorney. This is an important stage in the trial and the physician must give it their full attention.

A deposition is an excellent opportunity for lawyers to gather details about the doctor, including his education, training and experience. This information is crucial to establish that the doctor violated the standard of care in your particular case and that the breach caused you injury. For example, physicians who have trained in the field of malpractice cases typically will affirm that they have extensive experience performing certain procedures and techniques that may be relevant to a specific medical-malpractice claim.

Trial

A civil court is officially launched when your lawyer file a complaint and summons with the court of your choice. This begins the process of legal disclosure, also known as discovery. Your doctor and your staff will work together in order to gather evidence that can prove your case. The evidence typically includes medical records and testimony of an expert witness.

The goal of proving malpractice is to establish that your physician's actions did not meet the standard of care. Your lawyer must convince a jury that it is more likely than not that your injuries wouldn't have occurred if your physician acted according to the standard of care. The attorneys for your doctor will present defenses that go against the evidence presented by your attorney.

Despite the myth that doctors are the target of frivolous claims of malpractice, decades of empirical evidence confirm that jury verdicts reflect reasonable judgments of negligence and damages, and that juries tend to be skeptical of large amounts of money awarded. The vast majority of malpractice cases are settled prior to trial.