How to File a Medical Malpractice Lawsuit

Many medical malpractice lawsuits demand a significant amount of time and resources from both doctors and attorneys. This includes doctor hours and work product as well as attorney time, court costs, expert witness fees, and many other costs.

A serious injury that is the result of the negligence of a healthcare professional's mistake, or omission could result in a medical malpractice claim. Injury victims may seek compensatory damages, which include economic losses such as past and future medical bills, and noneconomic loss such as pain and suffering.

Complaint

A medical malpractice lawsuit is made up of many moving parts and requires reliable evidence to be successful. The person who was injured or their attorney should the patient die, must show each of these legal elements:

The defendant breached the duty. The defendant erred in his duty. That the breach directly caused injury to the plaintiff. This element of an action for malpractice is called "causation." A breach of the standard of care is not a cause of injury, but it has to be proven that the breach directly caused the injury and was the main cause of the injury.

It is typically necessary to file a claim with a medical board in the state in order to protect the rights of the patient and to ensure that the doctor does not commit any further mistakes. A report is not a lawsuit but it could be a good first step in starting the malpractice claim. It is recommended to talk with a Syracuse malpractice lawyer prior to filing any report or other document.

Summons

As part of the legal process an order or claim form is filed with the court and handed to the defendant doctor. A lawyer for the plaintiff appointed by the court will review these documents. If it appears that there is a malpractice case the lawyer will file an affidavit and complaint with the court, describing the possible mistake.

The next step is to obtain evidence by pretrial disclosure. This involves making requests for evidence including hospital billing and clinic notes, and taking depositions of the defendant physician. Attorneys will then question the defendant under oath regarding his or her knowledge regarding the case.

The information provided will be utilized by the lawyer representing the plaintiff to establish the elements of a claim for medical negligence during trial. The elements of a medical malpractice claim include the existence of an obligation on the part of the physician to provide treatment and care to patients, the doctor's breach of this duty, a causal link between the breach and injury or death of the patient, and an amount of damages sufficient to warrant a monetary award.

Discovery

During the discovery process each side is entitled to request and receive evidence that is relevant to the case. This includes gardner medical malpractice lawyer records prior to and after an incident of negligence, information regarding experts and tax returns or other documentation related to out-of-pocket expenses that the plaintiff claims to have caused, and the names and contact details of any witnesses who will testify at trial.

Most states have a statute-of-limitations that limits the amount of time a patient can claim compensation after suffering injuries due to an error made by a doctor. Those time limits are usually set by law of the state, and are subject to a rule known as the "discovery rule."

In order to win a medical negligence lawsuit, the injured patient has to prove that the negligence of a doctor caused specific harm, such as physical pain, or loss of income. They must also prove causationwhich means, that the negligent treatment was the sole reason for their injuries or death.

Deposition

Depositions are question and answer sessions that are conducted in the presence of the court reporter who takes notes of both the questions and the answers. Depositions are part of the process of discovery in which parties gather information to use in a trial.

Attorneys can pose a number of questions to witnesses, mostly doctors. If a physician is interrogated by a lawyer, the doctor must answer each question truthfully under oath. Usually the physician is asked questions by one attorney and is then cross-examined in the presence of another attorney. This is a crucial phase of the case and requires the complete attention and focus of the doctor.

A deposition is an excellent method for lawyers to obtain details about the doctor, including his or their education, training, and firm experience. This information is essential to proving that the physician breached the standard of care in your particular case and that the breach caused you harm. For instance, doctors who have trained in the field of malpractice cases typically will affirm that they have extensive experience in the execution of specific procedures and techniques that could be relevant to a particular medical-malpractice claim.

Trial

A civil court is formally launched when your lawyer files a complaint and summons with the appropriate court. This begins the process of legal disclosure known as discovery. You and your doctor's team will work together to gather evidence to prove your case. This usually includes medical records and testimony from experts.

The goal of proving malpractice is to prove that your doctor's actions did not meet the standard of care. Your lawyer must convince a jury that it is more likely than not your injuries could not have occurred had your doctor followed the standards of care. The lawyers for your doctor will present arguments that are contrary to the evidence presented by your attorney.

Despite the common belief that doctors are targets for fraudulent malpractice claims, decades of empirical evidence confirm that jury verdicts reflect fair judgments of negligence and damages, and that juries tend to be skeptical of excessive award amounts. The vast majority of malpractice cases are settled before trial.