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How to File a Medical Malpractice Lawsuit

Both lawyers and physicians must invest significant time and money in many medical malpractice lawsuits. This investment covers physician time and work product attorneys' time, court costs as well as expert witness fees and many other costs.

A serious injury that is the result of a healthcare professional's negligence, misconduct, error or omission can lead to medical malpractice claims. Injury victims can seek compensation for economic losses, including past or future medical bills as well as non-monetary damages, such as discomfort and pain.

Complaint

A medical malpractice case is a complicated one and requires a solid proof of the claim for success. The injured person or their attorney should the patient die must prove each of these legal elements:

That a doctor or hospital was required to follow the standard of care applicable. The defendant did not meet this obligation. That the breach directly caused injury to the plaintiff. This element of a malpractice claim is known as "causation." A breach of the standard of care itself is not a cause of injury, but it must be shown that the breach directly caused the injury and was the proximate reason for the injury.

In order to protect a patient's rights, and to ensure that a doctor doesn't commit any further mistakes, it is essential to file a claim with the state medical board. A report is not a lawsuit, but it could be an effective first step towards beginning the process of bringing a malpractice claim. It is recommended to talk with a Syracuse malpractice attorney prior to making any report or other document.

Summons

A summons or claim is filed in court and sent to the doctor who is defendant as part of the legal procedure. A court-appointed lawyer for the plaintiff will then review these documents and, if it appears that there is a case of malpractice then they will file a complaint and affidavit with the court, describing the medical error that they believe to have committed.

The next step is to collect evidence by pretrial disclosure. This involves submitting requests for documentation such as hospital invoices and clinic notes and taking the defendant's deposition, where attorneys question the defendant about his or his knowledge of the case under oath.

This information will be used by the plaintiff's lawyer to prove elements of a claim for medical negligence in the course of trial. The elements of a medical malpractice claim include the existence of a duty on the part of the physician to provide treatment and care to patients, the physician's violation of this duty, a causal link between the breach and injury or death of the patient, and enough damages to warrant a monetary compensation award.

Discovery

During the discovery process, both sides are allowed to ask for and receive evidence that is relevant to the case. This includes medical records prior to and following the an alleged malpractice, details about expert witnesses and tax returns, copies or other documents relating to out-of-pocket expenses which the plaintiff claims they incurred, along with the names and contact information of any witnesses who are scheduled to appear at trial.

Most states have a statute of limitations which allows injured patients the time period of a certain amount of years after a medical error to pursue a lawsuit. These time limits are typically set by law of the state, and they are subject to a rule known as the "discovery rule."

In order to win a medical malpractice law firms negligence case the patient who was injured must show that a doctor's negligence caused specific harm for example, physical pain or loss of income. They must also prove causation i.e. that the negligent treatment led to their injury or death.

Deposition

Depositions are sessions of question and answer which take place in the presence of a court reporter who takes notes of the questions as well as the answers. Depositions are a part of the discovery process, in which parties gather information to be used in a trial.

Depositions allow attorneys to ask witnesses, usually doctors to answer a set of questions. If a physician is interrogated to testify, he or she must answer all questions truthfully under the oath. Usually, the physician is asked questions by one attorney, and then cross-examined by a different attorney. This is an important stage in the trial and the doctor must give it their full attention.

Depositions are a great opportunity for Medical malpractice lawsuits lawyers to gather a detailed background of the doctor, including the doctor's education, training and experience. This information is critical to establish that the doctor violated the standard of care in your particular case and that the breach directly caused you injury. Physicians who have been educated in this area often declare that they have knowledge of certain techniques and procedures that could be relevant to a particular medical malpractice case.

Trial

Your lawyer will make a complaint to the court, along with a summons. This begins the process of legal disclosure known as discovery. Your doctor and your team will work together to collect evidence to support your case. The evidence typically includes medical records as well as testimony of an expert witness.

The goal of proving malpractice is to establish that your doctor's actions were not in line with the standard of care. Your lawyer must convince jurors that it is more likely than not your injuries would not have occurred had your doctor acted according to the standard of care. Your doctor's lawyers will argue arguments that do not agree with the evidence that your attorney has presented.

Despite folklore suggesting that doctors are a target for frivolous malpractice claims, decades of empirical research proves that jury verdicts generally reflect fair assessment of damages and negligence, and that juries are skeptical about overinflated damages awards. The majority of malpractice cases are settled prior to trial.