How to File a Medical Malpractice Lawsuit

Many medical malpractice cases require a lot of time and resources from both doctors and lawyers. This can include attorney time, court fees, expert witness fees and other costs.

A medical malpractice claim may be filed when a healthcare professional is negligent, medical malpractice attorneys has committed misconduct, made an error, or failed to act. The injured party can seek compensation for financial losses, such as past or future medical malpractice lawsuits bills as well as non-monetary damages, like discomfort and pain.

Complaint

A medical malpractice attorneys; click through the next page, malpractice lawsuit is made up of many moving parts and requires a solid evidence to be successful. The injured patient (or their attorney if they have died) must show each of these legal aspects of the claim:

The defendant breached that duty. The defendant breached this duty. 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 injury, but it must be proven that the breach directly caused the injury and was the primary cause of the injury.

In order to protect a patient's rights, and to ensure that a doctor is not committing further errors, it is required to file a claim with the state medical board. A report is not a lawsuit, but it can be the first step to getting the malpractice claim started. It is recommended to consult with a Syracuse attorney for malpractice prior to filing a report or other document.

Summons

A summons or claim is filed in a courtroom and sent to the doctor who is defendant as part of the legal procedure. A plaintiff's lawyer who is appointed by the court will look over these documents. If it appears that there may be a malpractice case the lawyer is required to file an affidavit, along with a complaint to the court, describing the alleged error.

The next step is to obtain evidence through pretrial disclosure. This involves submitting requests for documentation including hospital billing or clinic notes, and taking the deposition of the doctor who is defending the case. Attorneys will then question the defendant on oath about their knowledge of the case.

The plaintiff's attorney will use this information to prove the elements of a medical malpractice case at trial. The elements of a medical malpractice claim include the existence of a duty on the part of the physician to provide care and treatments to patients, the physician's violation of this duty and a causal link between the breach and the injury or death of the patient and a sufficient amount in damages to warrant a monetary award.

Discovery

During the discovery phase where both parties are permitted to request any evidence relevant to their case. This includes medical records from prior to and after an incident of negligence, information regarding experts and tax returns, copies of the tax return or other documents related to expenses out of pocket that the plaintiff claims have been caused, and the names and contact details of any witnesses who will testify during the trial.

The majority of states have a statute of limitations that restricts the length of time that a patient is allowed to pursue a lawsuit after being injured due to an error made by a doctor. The time limit is set by state laws and are subject to a rule called the "discovery rules."

In order to win a medical malpractice case the patient who was injured must prove that a doctor's negligence caused harm to a specific person for example, physical pain or loss of income. They must also prove causation -- that is, that the negligent treatment was directly responsible for their injuries or death.

Deposition

Depositions are questions-and-answer sessions that are conducted in the presence of a court reporter who takes notes of the questions as well with the answers. Depositions are part of the discovery process through which parties collect information to be used in a trial.

Depositions allow attorneys to ask witnesses, usually doctors to answer a series of questions. When a physician is deposed and questioned, they must answer all questions in an honest and open manner under the oath. Usually the physician is asked questions by one attorney, and later cross-examined by a second attorney. This is an important stage of the case that requires the full attention and focus of the doctor.

A deposition is an excellent method for lawyers to obtain an in-depth background on the doctor, including her training, education and experience. This information is crucial to establish that the doctor violated the standards of care in your particular case and that the breach caused you harm. For example, physicians who have completed training in the area of malpractice cases usually affirm that they have extensive experience performing certain procedures and methods that could be relevant to a particular medical malpractice case.

Trial

A lawsuit in a civil court is launched when your lawyer files a complaint and summons with the court of your choice. This initiates a legal disclosure process called discovery. Your doctor and your staff will work together to gather evidence to prove your case. This typically includes medical records and testimony of an expert witness.

To prove malpractice it is necessary to prove that the doctor's actions did not meet the standards of care. Your lawyer must convince a jury that it is more likely than not that your injuries would not have occurred if your doctor acted in accordance with the standards of care. Your doctor's lawyers will present defenses that contradict the evidence provided by your attorney.

Despite the myth that doctors are targets for false claims of malpractice, decades of empirical evidence demonstrate that jury verdicts are based on reasonable estimates of negligence and damages and that juries are skeptical of award amounts that are exaggerated. The majority of malpractice cases settle prior to trial.