How to File a Medical Malpractice Lawsuit

Both lawyers and doctors have to invest significant time and money in many medical malpractice lawsuits. This can include physician hours and work product and attorney time court costs, expert witness fees, and countless other expenses.

A medical malpractice claim can be filed if a healthcare professional is negligent or has acted in a manner that is illegal or erred, or failed to take action. Victims of injury may seek compensation damages, including the actual economic losses such as past and future medical bills, as well as non-economic expenses like pain and suffering.

Complaint

A medical malpractice case is a complicated one and requires evidence of credibility for success. The injured patient or their attorney should the patient die, must be able to prove each of these elements:

A hospital or doctor was required to act according to the applicable standard of care. The defendant erred in his obligation. The breach directly caused injury to the plaintiff. This aspect of an action for malpractice is called "causation." A breach of the standard of care itself does not cause injury; it must be shown that the breach directly caused the injury and was the main cause of the injury.

In order to protect the rights of a patient and to ensure that a doctor is not committing further errors, it is required to file a complaint with the state medical malpractice lawsuit board. However, filing a complaint is not the start of a lawsuit and is often just a step towards getting the malpractice case moving. It is recommended to consult with an Syracuse attorney for malpractice prior to making a report or other type of document.

Summons

As part of the legal process, an order or claim form is filed with the court and then handed to the defendant physician. A lawyer appointed by the court will go through the documents. If it appears there is a malpractice issue, the lawyer will file an affidavit as well as a complaint with the court, describing the suspected error.

The next step in the legal process is to obtain evidence through pretrial discovery. This involves submitting requests for evidence like hospital billing information or clinic notes, as well as conducting a deposition of the doctor who is being sued in which attorneys ask the defendant about his or her knowledge of the case under an oath.

The information provided will be used by the plaintiff's lawyer to prove elements of an action for medical malpractice in court. The elements of a medical malpractice case include the existence of a duty on the part of the physician to provide medical and treatment to patients, the physician's failure to fulfill this duty and a causal link between the breach and the injury or death of the patient, and the amount of damages to warrant a monetary award.

Discovery

During the discovery phase, both parties are allowed to request evidence pertinent to their case. This includes medical records that were taken prior to and after an incident of negligence, information on experts and tax returns or other documents relating to out-of pocket expenses that the plaintiff claims to have incurred, and the names and contact information of witnesses who will be testifying in the trial.

Most states have a statute-of limitations that limit the length of time that a patient is allowed to pursue a lawsuit after being injured due to medical error. The time limit is set by the laws of the state and are subject to a rule known as the "discovery rules."

To win a medical malpractice attorneys negligence case the patient who was injured must prove that the doctor's negligence caused harm to a specific person that is physical pain or loss of income. They must also prove causation -- that is, that the negligent treatment was directly responsible for their injuries or death.

Deposition

Depositions are question and answer sessions conducted in the presence of the court reporter who takes notes of both the questions as well as the responses. The deposition is a part of the discovery process through which the parties gather information to be used in the trial.

Depositions allow attorneys to question witnesses, often doctors to answer a set of questions. When a physician is deposed and asked to answer questions truthfully under oath. Usually, the physician is initially questioned by an attorney and then interviewed by another attorney. This is an important stage in the case, and the physician must be attentive to the case.

A deposition is a great method for lawyers to obtain details about the doctor, including her training, education and experience. This information is crucial in proving the doctor breached your standard of care and that this breach resulted in injury to you. For example, physicians who have trained in the area of malpractice cases generally be able to prove that they have a lot of knowledge of certain procedures and techniques that may be relevant to a particular medical malpractice claim.

Trial

A civil court is officially initiated when your lawyer is able to file a complaint as well as a summons with the court of your choice. This triggers a legal procedure of disclosure, also known as discovery, which is where you and your doctor's team collaborate to collect information to prove your case. The evidence usually consists of medical records and testimony from experts.

To prove that you committed a crime it is necessary to prove that the doctor's actions were below the standard of care. Your lawyer must convince the jury that your injuries would be avoided if your doctor had acted in accordance with the standards of care. Your doctor's lawyer will present arguments that are contrary to the evidence presented to you by your attorney.

Despite the legend that doctors are a target for malpractice claims that are not meritorious, years of empirical research has shown that jury verdicts typically reflect reasonable assessment of damages and negligence, and juries are skeptical of overinflated damages awards. The majority of malpractice cases settle prior to trial.