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How to File a Medical Malpractice Lawsuit

Both lawyers and physicians must spend a significant amount of time and money in the many lawsuits involving medical malpractice. This includes attorney time and court costs expert witness fees, court costs and other costs.

A serious injury that is the result of the negligence of a healthcare professional's mistake, or omission can give rise to a medical malpractice claim. Plaintiffs seeking compensation for their injuries can seek damages, including actual economic losses, such as future and past Medical Malpractice attorneys bills, as well as non-economic loss such as pain and suffering.

Complaint

A medical malpractice case is complex and requires a solid proof of the claim to be successful. The person who was injured, or their attorney should the patient die, must demonstrate each of these legal elements:

The defendant breached the duty. The defendant violated that obligation. That the breach directly caused injury to the plaintiff. This element of an action for malpractice is called "causation." A breach of the standard of care itself does not cause an injury, but it has to be proved that the breach directly caused the injury and was the proximate cause of the injury.

To safeguard the rights of a patient and to ensure that a doctor is not committing further malpractice, it is necessary to file a claim with the state medical board. A report is not a lawsuit, but it could be a good first step in beginning the process of bringing a malpractice claim. It is often best to speak with a Syracuse malpractice lawyer prior to filing a report or other document.

Summons

As part of the legal procedure, a summons or claim form is filed with the court, and then delivered to the defendant physician. A plaintiff's lawyer who is appointed by the court will go through these documents. If it appears that there may be a malpractice case the lawyer will file an affidavit and complaint with the court, detailing the claimed mistake.

The next step in the legal process is to obtain evidence through pretrial discovery. This involves submitting requests to document such as hospital invoices and notes from the clinic, and then taking the defendant's deposition in which attorneys ask the defendant on his or his knowledge of the situation under oath.

The plaintiff's attorney will use this evidence to prove the elements of a claim for medical malpractice in court. The elements of a medical malpractice claim include the existence of a duty on the part of the doctor to provide treatment and care to patients, the doctor'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 compensation award.

Discovery

During the discovery phase where both parties are permitted to request evidence pertinent to their case. This includes medical malpractice lawsuits records prior to and following the suspected malpractice, information on experts and tax returns or other documentation related to out-of-pocket expenses which the plaintiff claims were incurred, as well as the names and contact details for witnesses who are expected to appear at trial.

Most states have a statute-of-limitations that limits the time a patient has to sue after being injured by an error made by a doctor. The length of time is determined by state laws and are subject to a rule known as the "discovery rules."

To prevail in a medical malpractice claim an injured victim must prove that the doctor's negligence caused a specific injury like physical pain or loss of income. They must also prove causation i.e. that the negligent treatment resulted in their injury or death.

Deposition

Depositions are questions and answer sessions that are conducted in front of the court reporter who takes notes of both the questions and answers. The deposition is a part of the discovery process in which the parties gather information to be used in a trial.

Attorneys can ask a series questions to witnesses, which are usually doctors. When a doctor is deposed, they must answer all questions truthfully under an oath. Usually the physician is asked questions by one attorney, and then cross-examined by another attorney. This is an important stage of the case that requires the complete concentration and attention of the physician.

Depositions are a great method for lawyers to obtain an in-depth background on the doctor, including her training, education and experience. This information is crucial to showing that the doctor violated the standard of care in your particular case and that the breach directly caused you injury. Physicians who have been trained in this area are likely to affirm that they have years of knowledge of specific procedures and techniques that could be relevant to a specific medical-malpractice case.

Trial

Your lawyer will submit a complaint to the court, along with a summons. The process begins with a legal requirement of disclosure called discovery, where you and your doctor's team collaborate to collect information to prove your case. This evidence typically includes medical records as well as testimony from expert witnesses.

To prove malpractice you must prove that the actions of your doctor were not in line with the standard of care. Your lawyer must convince the jury that your injuries would be prevented if the doctor had acted in accordance with the standard of care. Your doctor's lawyer will present arguments that are contrary to the evidence presented by your attorney.

Despite the common belief that doctors are targets for frivolous claims of malpractice the decades of evidence show that jury verdicts reflect reasonable estimates of negligence and damages, and that juries tend to be skeptical of inflated award amounts. The majority of malpractice cases are settled before trial.