How to File a Medical Malpractice Lawsuit

Many medical malpractice lawsuits require significant time and resources from both doctors and lawyers. This investment includes attorney time, court fees, expert witness fees and other costs.

An injury resulting from an healthcare professional's negligence, incompetence, error or omission could result in a medical malpractice claim. Plaintiffs seeking compensation for their injuries can seek damages, which include economic losses such as past and future medical bills, as well as noneconomic loss such as pain and suffering.

Complaint

A medical malpractice suit has many moving parts and requires reliable evidence to win. The injured patient (or their attorney if they've passed away) must show each of these legal aspects of the case:

The defendant breached the duty. The defendant erred in his duty. 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 doesn't cause injury; it must be proved that the breach directly caused the injury and was the main cause of the injury.

To ensure the rights of a patient, and to ensure that a physician doesn't commit any further errors, it is required to file a claim with the state tarrytown medical malpractice law firm board. But, filing a report does not start an action, and is often only a first step in getting the malpractice claim moving. It is best to consult a Syracuse malpractice attorney prior to making any report or other document.

Summons

As part of the legal process, the summons or claim form is filed with the court and handed to the doctor who is the defendant. A lawyer for the plaintiff appointed by the court will go through the documents. If it is determined that there is a malpractice issue the lawyer is required to file an affidavit, along with a complaint to the court, describing the claimed error.

The next step in the legal process is to obtain evidence through pretrial discovery. This involves the submission of requests for documentation including hospital billing and notes from clinics, and taking depositions of the doctor who is defending the case. Attorneys will then inquire with the defendant under oath regarding his or her knowledge regarding the case.

The information provided will be used by the plaintiff's lawyer to prove the elements of an action for medical malpractice in court. The elements of a medical malpractice case include the existence of a duty on the part of the physician to provide treatment and care to patients, malpractice the physician's violation of this duty, a causal link 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 process, both sides are entitled to request and receive evidence relevant to the case. This includes medical records from before and after an incident of negligence, information on experts and tax returns, copies of the tax return or other documentation relating to expenses out of pocket that the plaintiff claims have been incurred, and the names and contact details of any witnesses who will testify at trial.

Most states have a statute-of-limitations that restricts the period that a patient must pursue a lawsuit after being injured due to an error in medical care. The time limit is usually set by law of the state, and are subject to a rule known as the "discovery rule."

In order to win a medical malpractice lawsuit an injured victim must prove that a physician's negligence caused a specific harm that is physical pain or loss of income. They must also prove causation i.e. that negligence caused their injury or death.

Deposition

Depositions are question and answer sessions that take place in the presence of the court reporter who takes notes of both the questions and responses. The deposition is an element of the process of discovery in which parties gather information to be used in a trial.

Depositions allow attorneys to ask witnesses, often doctors to answer a set of questions. When a physician is deposed and questioned, they must answer the questions truthfully under an oath. Usually, the physician is asked questions by one attorney, and later cross-examined by a second attorney. This is a crucial stage in the case and the physician must be attentive to the case.

A deposition is a fantastic opportunity for lawyers to gather an extensive background on the doctor, including the doctor's education, training and experience. This information is crucial to prove that the doctor did not meet the standard of care in your case and that the breach directly caused you injury. Physicians who have received training in this field will typically testify they have extensive experience performing certain techniques and procedures that may be relevant to an individual medical malpractice case.

Trial

A lawsuit in a civil court is launched when your lawyer file a complaint and summons with the appropriate court. This starts the process of legal disclosure, also known as discovery. Your doctor and your team will collaborate in order to gather evidence that can prove your case. This evidence usually includes medical records as well as expert witness testimony.

The goal of proving malpractice is to prove that your doctor's actions fell short of 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 doctor acted according to the standard of care. The lawyer for your doctor will present arguments that are contrary to the evidence presented by your attorney.

Despite folklore suggesting that doctors are a target for frivolous malpractice claims decades of research on the subject shows that jury verdicts usually reflect fair judgments about the extent of negligence and damages, and that juries are skeptical of inflated damage awards. The vast majority of malpractice cases are settled prior to trial.