How to File a Medical Malpractice Lawsuit

Both physicians and lawyers must spend a significant amount of time and money in numerous medical malpractice lawsuits. This can include physician hours and work product and attorney time, court costs and expert witness fees and countless other expenses.

A Medical Malpractice Attorneys malpractice claim may be filed in the event that a healthcare professional was negligent, has committed misconduct or erred, or failed to take action. Plaintiffs seeking compensation for their injuries can seek damages, including the actual economic loss such as future and past medical bills, as well as non-economic expenses like pain and suffering.

Complaint

A medical malpractice suit has many moving parts and requires reliable evidence to win. The injured party (or their attorney if they have died) must be able to prove each of the following legal aspects of the case:

The defendant did not fulfill that duty. The defendant failed to meet this duty. The breach directly caused injury for the plaintiff. This aspect of a malpractice claim is known as "causation." A breach of the standard of care is not a cause of injury, but it must be proven that the breach directly caused the injury and was the direct cause of the injury.

To safeguard the rights of a patient, and to ensure that a doctor does not continue to commit malpractice, it is necessary to file a report with the state medical board. A report is not a lawsuit but it could be an excellent first step in initiating the malpractice lawsuit. It is usually recommended to consult a Syracuse attorney for malpractice prior to filing a report, or any other type of document.

Summons

As part of the legal process a summons or claim forms is filed with the court, and then delivered to the doctor who is the defendant. A lawyer appointed by the court on behalf of the plaintiff will then look over the documents and, if it appears that there could be an issue with malpractice and they file an affidavit and complaint with the court describing the alleged medical error.

The next step is obtaining evidence through pretrial disclosure. This includes filing requests for documents, such as hospital billing and notes from clinics, and taking depositions of the defendant physician. Attorneys then will question the defendant under oath as to the details of the case.

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

Discovery

During the discovery phase in the discovery phase, both parties are entitled to request any evidence relevant to their case. This includes medical records prior to and after an incident of alleged negligence, information regarding experts and tax returns or other documentation related to expenses out of pocket the plaintiff claims to have incurred, and the names and contact details of any witnesses who will be testifying in the trial.

The majority of states have a statute of limitation which allows injured patients a certain number of years after an injury or medical mistake to bring a lawsuit. These time limits are determined by state laws and are subject to a regulation known as the "discovery rules."

In order to win a medical malpractice case, an injured patient must prove that a doctor's negligence caused a specific harm, such as physical pain or loss of income. They must also prove causationwhich means that the negligent treatment was the sole reason for their injury or death.

Deposition

Depositions are sessions of question and answer which take place in the presence a court reporter, who takes notes of the questions as well with the answers. Depositions are part of the process of discovery in which the parties collect evidence to use in a trial.

Attorneys are able to ask a series of questions to witnesses, usually doctors. If a doctor is deposed by a lawyer, the doctor must answer the questions truthfully under oath. Typically, the doctor is asked questions by one attorney, and is then cross-examined in the presence of another attorney. This is a crucial phase in the trial, and the physician must give it their full attention.

Depositions are a great way for attorneys to get an extensive background on the doctor, including their education, training, and experience. This information is critical to prove that the doctor did not meet the standard of care in your situation and that the breach resulted in injury. Physicians who have been educated in this area often be able to prove they have knowledge of certain techniques and procedures that may be relevant to an individual medical-malpractice case.

Trial

A civil court is formally launched when your lawyer is able to file a complaint as well as a summons with the appropriate court. This triggers a legal procedure of disclosure called discovery, where you and the doctor's team collaborate to collect evidence to support your case. This usually includes medical records as well as testimony from experts.

The goal of proving negligence is to prove that your doctor's actions fell short of the standard of care. Your lawyer must convince jurors that it is more likely than not your injuries could not have occurred had your doctor acted according to the standards of care. Your doctor's lawyers will present arguments that do not agree with the evidence presented by your attorney.

Despite the belief that doctors are targets for fraudulent malpractice claims years of evidence demonstrate that jury verdicts reflect reasonable judgments of negligence and damages and that juries tend to be skeptical of excessive award amounts. The majority of malpractice cases are settled prior to trial.