How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits are a complex matter. There are specific guidelines to follow, for example a time limit within which the lawsuit can be filed.

The claimant also has to prove that the actions of the doctor caused injuries and losses. This will require medical and hospital documents.

Complaint

Your lawyer will file a court complaint and summons once he or she has found evidence of malpractice. The complaint will identify the defendants and make the allegations you bring against them.

Malpractice claims are founded on the idea that nurses, doctors, or other healthcare professionals owe patients a certain standard of care. This is the amount of competence and prudence that the reasonably prudent doctor with similar training would employ in similar circumstances. Your legal team needs to show that your doctor did not meet this standard which resulted in injuries from which you sustained quantifiable damages.

It can be a challenge to prove that a doctor's standard is the same as another doctor's. It is essential to find an attorney who has access to experts in the field of medicine to provide proof of what a reasonable doctor would have done.

Not only doctors can make mistakes, but also hospital staff, such as anesthesiologists and nurses. This is particularly true of emergency room personnel, where mistakes are frequently made due to the crazed atmosphere and overworked staff. Your attorney may be able to secure expert testimony from emergency room personnel who can explain what could have been done differently and the reason why your doctor failed to fulfill this standard.

Discovery

During the discovery process your lawyer will gather and review evidence that could be used to support a malpractice claim. This includes medical documents, witness statements, expert testimony and more. The legal team on the other side will also have the option to request these documents from you and your attorney. This is usually done through interrogatories as well as requests for production of documents. However, certain materials may be classified as confidential or privy because of privacy laws such as HIPAA and its Privacy Rule.

You must also prove that your injury is the result of the doctor's negligence. This is the most difficult aspect of a medical negligence case since it requires expert witness testimony to support your claim.

Your lawyer will also depose witnesses who can demonstrate the doctor's negligent actions. This could include radiologists dentists, nurses, assistants and other personnel who were involved in the care of your health. Your lawyer will be adept at taking strong and effective depositions to convince these witnesses to admit that the doctor's negligence was not their fault.

Most lawsuits are settled prior to trial. This is especially common for medical malpractice cases, since the costs of a trial can be very high. Once the facts are established then you can negotiate a settlement with the insurance company of the doctor. If no settlement can be reached, your case could go to trial.

Trial

Your lawyer will file a complaint following completing the initial investigation. If they find that you have a solid case for malpractice, they will file it. The complaint will clearly state the allegations and will be given to the defendant along with a summons.

The next phase involves discovery. This includes the exchange of medical records as well as depositions from witnesses. The lawyer will use the statements to prove that the doctor did not follow the standard of care. The goal is to show that the error was the result of the negligence of your doctor, and caused damages.

Your medical malpractice attorney will also work with one or more expert witnesses to prove your claim. These experts will receive medical records as well as detailed information regarding your case in order to prepare for their deposition and testimony. They can also assist you in preparing your case for trial.

Your attorney will begin talks with the defense team as part of the preparation for trial. This process is ongoing throughout the trial, and can take up to years. During this period, you will be recovering from your injuries and determining the extent and value of your injuries. When possible, it's in everyone’s best interest to avoid litigation and settle out of court. Your lawyer will carefully evaluate the merits of any settlement offer with your current and future recovery. If the settlement proposal is reasonable the lawyer will be able to convince 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 contributed to those damages. For instance, if a doctor failed to inform the patient that a surgical procedure was associated with a 30 percent chance of losing a limb and the procedure was carried out perfectly but the patient lost their arm or limb, the doctor could be held accountable for negligence.

A victim may also demonstrate that a skilled lawyer could have averted or reduced their financial loss. It is sometimes referred to the "but for test". Additionally, it is required to prove that the plaintiff's expenses to pursue a legal claim that is more than the amount sought as compensation.

Our medical malpractice lawyers can explain the various kinds of damages that can be given in a malpractice lawsuit including past, current and future medical expenses as also lost income and pain and discomfort and other non-economic losses. In general, the more severe the injury, the higher the amount of compensation. A decision that is found to be a success could be overturned through an appeal. Therefore, settling out of court may be a good option for a few clients. It will save money and time in court costs. It also eliminates the possibility of a jury making a decision based on emotion instead of fact.