How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits can be a bit complicated. There are certain guidelines to be followed with a specific time frame in which the suit can be filed.

The claimant must also prove that the actions of the doctor caused injuries and losses. This will require hospital and medical records.

Complaint

After your attorney's investigation has discovered evidence of malpractice has occurred, he or she will file a lawsuit in court and issue a summons. The complaint will name the defendants and describe the allegations you make against them.

Malpractice claims are based on the idea that a doctor or healthcare provider is obligated to a patient a certain standard of care. This is the level of competence and prudence that a reasonably prudent doctor with the same training would employ in similar situations. Your legal team has to show that your doctor breached this standard that resulted in injuries due to which you sustained quantifiable damages.

It can be a challenge to prove that a physician's standard is the same as another doctor's. This is why it's important to work with a legal firm that has access to experts who can testify on the medical field and what a reasonable professional in your doctor's position would have done.

It is not just physicians who commit medical mistakes; hospital personnel, including nurses and anesthesiologists can be liable for malpractice. This is particularly true for emergency room staff, where mistakes are frequently made due to the crazed atmosphere and overworked workers. Your lawyer may be able to secure testimony from experts in the emergency department who can help demonstrate what could have been done and how your doctor's actions were not up to the standard.

Discovery

During the discovery phase, your attorney will gather and review evidence that could support a malpractice claim. This includes medical records, witness statements, expert testimony and more. The information may also be requested by the legal team opposing the case. This is usually done through inquiries and requests for production of documents. However, certain materials may be classified as confidential or privileged due to privacy laws like HIPAA and its Privacy Rule.

You must also prove your injury is the result of the negligence of your doctor. This is the most challenging part of a malpractice case since it requires expert witness testimony to support your claim.

Your lawyer will also call witnesses who can demonstrate the doctor's negligence. This could include radiologists dentists nurses, assistants, nurses as well as other individuals who were involved in the treatment of your health. Your attorney will be skilled in taking effective and convincing depositions to convince these witnesses to admit that the doctor's negligence was not their fault.

Most lawsuits are resolved, or settled, before they reach the trial stage. This is especially common in medical malpractice cases because the costs associated with a trial can be extremely high. Once the facts are established then you can negotiate an agreement with the insurance company that covers the doctor. If a settlement isn't possible your case will go to trial.

Trial

Your lawyer will file a formal complaint after an initial investigation. If they decide that you have a solid case of malpractice, then they will file the complaint. This will clearly outline the allegations and must be delivered to the defendant in the summons.

The next phase involves discovery. This involves the exchange of medical records and depositions of witnesses. Your lawyer will use these statements to establish your doctor's breach of the standard of care. The objective is to prove that the error was the result of the negligence of your doctor, and caused damages.

Your medical malpractice lawyer will also work with one or more expert witnesses in support of your claim. These experts will receive medical records and specific information about your case to prepare for their deposition and testimony. They can also assist in preparing your case for trial.

As part of the trial preparation, your attorney will begin settlement negotiations with the defense. This process can go on for several years. In this time, you are recovering from your injuries and determining the extent of your damages. If you can, it is in everyone’s best interest to avoid litigation and settle out of court. Your attorney will carefully assess the merits of any settlement offer against your current and future recovery. 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 significant and that the negligence of the defendant contributed to those damages. If, for example, the doctor failed to inform the patient of the 30 percent chance that the procedure could result in the loss of a leg, and the procedure was perfect but the patient lost an arm and limb, then the medical professional may be held accountable for negligence.

A victim may also show that a competent lawyer could have prevented or minimized the financial loss. This is sometimes referred to the "but for test". It is also necessary to show that the plaintiff has paid for expenses in pursuit a successful legal claim that is greater than the amount they seek in compensation.

Our medical malpractice lawyers are able to explain the different types of damages that could be sustained in a malpractice lawsuit including the past, present and future medical expenses, lost income, suffering and other economic and non-economic losses. In general, the more serious the injury, higher the amount of compensation. A verdict that is successful could be overturned through an appeal. Settlements outside of court could be beneficial for certain clients. It could save money and time on litigation costs. It also helps avoid the risk of a jury making a decision based on emotions instead of facts.