How to File a Medical Malpractice Lawsuit

Both lawyers and physicians must invest considerable time and funds in a variety of medical malpractice lawsuits. This investment covers physician time and work product and attorney time court costs, expert witness fees, and countless other expenses.

An injury caused by the negligence of a healthcare professional's incompetence, error or omission could result in a medical malpractice claim. Plaintiffs seeking compensation for injuries can file for economic losses, like future or past medical malpractice attorney bills, as well as noneconomic damages, such as discomfort and pain.

Complaint

A medical malpractice case is a complicated one and requires proof of credibility to be able to prevail. The person who was injured (or their attorney if they've died) must show each of these legal aspects of the claim:

The defendant breached that obligation. The defendant breached this duty. The breach directly caused injury to the plaintiff. This aspect of an action for malpractice is called "causation." A breach of the standard of care itself doesn't cause injury, but it must be shown that the breach directly caused the injury and was the primary cause of the injury.

It is often necessary to file a formal complaint with a state medical body to protect the patient's rights and ensure that the doctor does not commit further errors. However, filing a report does not initiate the process of a lawsuit, and is typically just a beginning step in getting the malpractice claim moving. It is advisable to speak with a Syracuse malpractice attorney before making any report or other document.

Summons

As part of the legal procedure, a summons or claim form is filed with the court and then handed to the defendant physician. A plaintiff's lawyer appointed by the court will look over the documents. If it appears there is a malpractice case, the lawyer will file an affidavit and a complaint with the court, detailing the possible error.

The next step in the legal process is obtaining evidence through pretrial discovery. This includes making requests for evidence, such as hospital billing or clinic notes, and taking depositions of the doctor who is defending the case. Attorneys will then ask the defendant under oath about their knowledge of the case.

This information will be used by the plaintiff's lawyer to prove the elements of a claim for medical negligence in court. The elements of a medical malpractice claim include the existence of a duty on the part of the doctor to provide medical and treatment to patients, the physician's failure to fulfill this duty and a causal link 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, both parties are allowed to request 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 relating to out-of-pocket expenses that the plaintiff claims to have attributable to them, and the names and contact information of witnesses who will be testifying during the trial.

Most states have a statute of limitation that permits injured patients the time period of a certain amount of years after a medical error to make a claim. Those time limits are usually determined by the law of the state and are subject to rules referred to as the "discovery rule."

To win a medical malpractice law firms malpractice lawsuit, an injured patient must prove that the negligence of a doctor resulted in specific harm such as 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 the presence of a court reporter who records both the questions and responses. The deposition is an element of the discovery process which consists of gathering information that can be used in the trial.

Depositions allow attorneys to question witnesses, often doctors, a series of questions. If a physician is interrogated by a lawyer, the doctor must answer each question truthfully under oath. Usually, the physician is questioned questions by one attorney and later cross-examined by a second attorney. This is a crucial stage of the case and requires the complete concentration and attention of the physician.

A deposition is a fantastic opportunity for lawyers to gather details about the doctor, including his or her training, education and experience. This information is essential to prove that the doctor did not meet the standard of care you expect and medical malpractice attorney caused you injury. Doctors who have been trained in this area often testify they have extensive experience with certain procedures and techniques that could 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 court of your choice. This is the beginning of the process of legal disclosure known as discovery. You and your doctor's team will collaborate to collect evidence to support your case. This typically includes medical records and testimony from an expert witness.

To prove malpractice it is necessary to prove that the doctor's actions were not in line with the standard of care. Your lawyer must convince a jury that it is more likely than not that your injuries could not have occurred had your doctor acted according to the standard of care. The lawyers for your doctor will present arguments that do not agree with the evidence that your attorney has presented.

Despite the belief that doctors are targets for malpractice claims that are frivolous, decades of empirical research proves that jury verdicts generally reflect fair assessments of negligence and damages and that juries are skeptical of excessive damage awards. The vast majority of malpractice cases settle before trial.