How to File a Medical Malpractice Lawsuit

A medical malpractice lawsuit against a hospital or doctor must prove that the defendant has violated his or her obligation to patients. This evidence may include hospital and medical documents.

Our lawyers have a wealth of experience in taking depositions that are effective. They could be doctors, other medical professionals who are working in private practice or are employed at a clinic or hospital.

Negligence

Patients are entitled to be treated with respect to certain standards when they visit a hospital, doctor or health care professional. Unfortunately, these standards are not always met or even violated. The results of this breach could be devastating.

A lawsuit can be brought against a medical professional if patients are injured or dies because of the negligence of that doctor. To establish a case, an injured patient must establish four legal elements: duty, breach, causation and damages.

Malpractice is defined as an act or omission by a physician that deviates from the accepted norms of practice within the medical profession, and inflicts harm on the patient. It is a part of tort law, which is concerned with civil wrongs not criminal offenses or contractual obligations.

Medical negligence differs from regular negligence in that the party who suffers has to prove that the doctor knew, or ought to have known, that their actions were likely to cause harm before they are able to claim malpractice. Normal negligence does not. A surgeon who accidentally nicks or cuts one of the nerves or veins during surgery is guilty of negligence but not negligence. This is because the surgeon did not intend to cause harm to anyone.

In the case of medical negligence the defendant's responsibility is to treat the patient in accordance with the standard of care that a prudent health care professional of similar experience and expertise would provide in similar circumstances. The violation of this duty is an essential element since it proves that the alleged negligence caused the injury.

Damages

In a malpractice case, damages are calculated based upon your losses as a result a doctor's negligence. This can include both financial losses, like future medical expenses, as well as non-economic losses like discomfort and pain.

To recover damages, you need to establish that a doctor acted in violation of the duty of care and that his deviance from the standard of care resulted in injury, and that the injury resulted in financial losses that are quantifiable. This is a complex legal analysis that typically requires expert witness testimony.

Some of these losses can be identified immediately, for example when a mistake made by a doctor resulted in an infection or other medical issues that require additional treatment. Some damage is more difficult to spot like when a doctor misdiagnoses your condition and you don't receive the correct treatment.

If the negligence of your doctor results in your death then you can sue for wrongful death. In these claims, you are entitled to all the benefits you could have gotten in a survival action in addition to punitive damages.

In the majority of states, there are limitations to the amount you can get in a lawsuit for malpractice. These caps vary by state and usually apply to both economic and non-economic damages. Some states have laws that limit the time you have to wait before filing a lawsuit.

Time Limits

As with any lawsuit there are certain deadlines that must be followed or the case could be barred. A malpractice lawsuit must generally be filed between two and six years after the incident occurred. The specific time limit is determined by the state.

It is crucial to consult an attorney as soon as you can. The law firm will investigate to determine if there was a mistake and if the case could stand up in court. This process can take up to a few weeks or even months.

Medical malpractice cases are subject to different laws and the statute of limitation is frequently altered. For instance in Pennsylvania patients must file a claim within 2 years of the date they were aware of the malpractice, or the date a reasonable person should have realized the injury existed. This is known as the discovery rule.

In other states, the statute of limitations starts at the time the malpractice lawyers occurred. This can be a problem if the medical mistake does not trigger any immediate symptoms. As an example, suppose the doctor is negligently leaving a foreign object inside the body after surgery. The patient may not realize the foreign object until three or more years after surgery. In this case the statute of limitations could have begun at the time of surgery rather than the time of discovery of an error.

Expert Witnesses

Expert witnesses are frequently called upon to explain the facts in medical malpractice cases. An expert witness for the plaintiff will testify about the duty of the doctor to the patient, the medical requirements for doctors who have similar qualifications in the field and specialization, and the ways the defendant deviated from those standards. The expert will explain how the departure directly led to the patient's injury.

The defendant will hire an expert to challenge the plaintiff's expert, and provide their professional opinion regarding whether the doctor's actions met the guidelines of care. It is normal for experts to differ with each with respect to their opinions, but the fact finder decides who is the most trustworthy based on their experience and education.

It is better for an expert to be working in the medical field because they will have better knowledge of current practices. Judges and jurors are likely to consider professionals who are practicing more credible than those who rely exclusively on the testimony of a court.

It is also preferable to get an expert witness who specializes in the area of the legal malpractice. A medical professional with prior experience treating breast cancer for instance, can present a an argument that is convincing as to the reason for an injury. A medical malpractice lawyer in Ocala will know what experts to speak with.