How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits are complex. There are certain guidelines to be followed including a time limit during which the suit can be filed.

The plaintiff must also prove that the doctor's actions resulted in injuries and losses. This will require medical and hospital records.

Complaint

Once your attorney's investigation has uncovered evidence that malpractice was committed, he will file a complaint in court and issue a summons. The complaint names the defendants in your case, and clearly outlines the allegations you're making against them.

Malpractice claims are based on the notion that a doctor or nurse or any other healthcare professional owes a patient a minimum standard of care. This is defined as the degree of competence and care that a reasonably prudent medical professional with similar training could exercise in similar situations. Your legal team must demonstrate that your doctor violated this standard and caused you to suffer quantifiable harm.

The standard of care a physician provides is often a matter of opinion, and can be difficult to prove. This is why it's important to work with a legal firm with access to expert witnesses who can provide testimony about the medical field and what reasonable medical professionals in the same situation as your doctor would have done.

It's not only doctors who commit medical mistakes; hospital staff members, like nurses and anesthesiologists, also can commit malpractice. This is especially true of emergency room personnel, where mistakes are often made due to a crowded environment and overworked employees. Your attorney may be able to obtain experts from emergency room personnel who can demonstrate the circumstances that led to the incident and how your doctor failed to meet the standards.

Discovery

During the discovery phase your lawyer will gather and look over evidence that could be used to support a malpractice claim. This could include medical records, witness statements as in addition to expert testimony. The legal team representing the other side may also be able to request the information from you and your attorney. This is typically done via inquiries and malpractice lawsuit requests for production of documents. Certain documents may be considered to be confidential and private due to privacy laws, like HIPAA's Privacy Rule.

You must also prove your injury is the result of negligence by the doctor. This is the most difficult element of a medical negligence case since it requires expert testimony to back your claim.

Your lawyer will also question witnesses who can demonstrate the doctor's negligent actions. This could include nurses, assistants radiologists, dentists, and other personnel who were involved in your care. Your lawyer will be adept at taking strong and effective depositions to convince these witnesses to admit that the doctor was negligent.

The majority of lawsuits are resolved or settled before they reach the trial stage. This is particularly true for medical malpractice cases, since the costs associated with the trial process can be expensive. Once the facts are established you can negotiate an agreement with the insurer of the doctor. If a settlement isn't attainable your case will go to trial.

Trial

Once your attorney has completed the initial investigation and concludes that you have a strong malpractice case they will file the complaint. The complaint will clearly state your allegations and will be served on the defendant, along with a summons.

Discovery is the next step. The next stage involves discovery. This includes the exchange and depositions of witnesses. Your lawyer will use these evidence to prove that your doctor did not follow the standard of care. The aim is to demonstrate that the error was caused by the negligence of your doctor, and resulted in damages.

Aside from the witness statement, your medical malpractice attorney will work with two or three experts to support your claim. They will be provided with medical records and specific information regarding your case to prepare for their depositions and testimony. They may also assist in preparing your case for trial.

As part of the preparation for trial your lawyer will start negotiations for settlement with the defense. This process is ongoing throughout the case and can take up to several years. During this time, you are recovering from your injuries and determining how much of your damages. It's in everyone's interest to settle outside of court whenever possible. Your attorney will carefully assess the merits of any settlement proposal with your current and future settlement. If the settlement is reasonable, your lawyer will encourage you to accept it.

Damages

During the process of discovery plaintiffs must demonstrate that their losses were substantial and that the negligence of the defendant was a factor in the damages. If, for instance, the doctor did not inform the patient of the 30 percent possibility that the procedure might result in the loss of a limb, and the surgery was perfect but the patient lost a limb and limb, then the medical professional may be held accountable for negligence.

A victim may also show that a skilled lawyer could have prevented or minimized the financial loss. This is often referred to as the "but for" test. In addition, it is important to show that the plaintiff's expenses to pursue a legal claim that is greater than the amount of compensation sought.

Our medical malpractice lawyers can explain the different types of damages that could be sustained in a malpractice lawsuit including the past, present and future medical expenses and lost income, as well as suffering and pain and suffering, and other economic and non-economic losses. In general, the more serious the injury, the greater the amount of compensation. However, a ruling that is successful could be reversed when appealed. So, settling outside of court may be a viable alternative for some clients. It can save money as well as time in litigation fees. It also avoids the risk of a juror ruling on a case based upon emotion instead of fact.