Medical Malpractice Litigation

Medical malpractice lawsuits are complex and time-consuming. Both defendants and plaintiffs are also legally required to pay an expensive price.

In order to obtain an award of money in a malpractice lawsuit, an injured patient must prove that negligent medical treatment caused injury. This requires establishing four legal elements such as a professional obligation, breach of that duty or breach, injury, and damages.

Discovery

The most important element of a medical negligence case is the gathering of evidence. This can be accomplished through written interrogatories and requests for documents. Interrogatories are composed of questions to which the opposing party must respond to under oath, and are used for establishing the facts to be presented in court. Requests for documents can be used to get tangible items, for example, medical records and test results.

In many instances, your lawyer will be able to take the defendant's deposition which is recorded as a question-and-answer session. This allows your lawyer to ask the physician or witness questions that would not be allowed at trial. It can be extremely effective in a case involving expert witnesses.

The information gathered in pretrial discovery will be used to prove your case at trial.

Infraction to the standard of care

Injury resulting from a violation of the standard of care

Proximate cause

A doctor's failure to apply the degree of knowledge and skill held by doctors in their area of specialization, and which proximately resulted in injury to the patient

Mediation

Although medical malpractice trials can be required, they come with significant negatives for both sides. For plaintiffs, the stress, expense, and the commitment to trial can have a negative psychological impact on them. For defendant health care professionals, a trial can result in humiliation as well as a loss of respect. It could also have negative consequences for their careers and practice, since the monetary payments they make as part of a settlement before trial are reported to national databases for practitioners, state medical licensing board and the medical society.

Mediation is a cost-effective and time-efficient way to resolve cases of medical negligence. By avoiding the cost of trial and avoiding the possibility of loss of jury verdicts, mediation allows both parties to be more flexible in settlement negotiations.

Before mediation, both sides provide the mediator with brief details about the case (a "mediation brief"). Parties will usually allow their communication to go through their lawyer instead of directly between themselves at this stage, as direct communications can be used against them later in court. As the mediation proceeds it's a good idea for you to focus on your case's strengths, and be willing to admit its weaknesses. This will enable the mediator to fill the gaps and make you a reasonable offer.

Trial

The goal of tort reformers is to establish a system that compensates those who suffer injury due to medical negligence promptly and without excessive cost. While this isn't easy, many states have implemented tort reforms to reduce expenses and to prevent frivolous medical malpractice claims.

Most doctors in the United States carry malpractice insurance to protect themselves against accusations of professional negligence in medical cases. Some of these policies are required to be carried out as a condition of hospital privileges or employment within a medical company.

To receive compensation for injuries resulting from negligence of a medical professional, the injured person must prove that the doctor did not meet the standard of care applicable to the profession they practice. This is known as proxy causation and is an essential element in a medical malpractice case.

A lawsuit starts by filing a civil summons or complaint in the appropriate court. After that the parties must participate in a process of disclosure. This can be done through written interrogatories, as well as the production of documents, including medical record. Depositions (in which attorneys challenge deponents under the oath), and requests for admission are also involved.

In a claim for medical malpractice the burden of proof is high. Damages are awarded based upon both economic losses (such as lost income or the cost of future medical treatment) and non-economic damages, such as discomfort and pain. It is crucial to consult with an experienced lawyer when you are trying to file a medical malpractice lawsuit.

Settlement

Medical malpractice lawsuits are resolved through settlement. In general, the actual dollar value of a case is negotiated between the plaintiff and the defendants (often through or alongside the defendant's malpractice/professional liability insurer). The victim receives a check that is sent to the plaintiff's lawyer who deposits it in an account for escrow. The lawyer will then deduct the case expenses and legal fees per the representation agreement, and then pays the injured person payment.

To prevail in a medical malpractice lawsuit the plaintiff must demonstrate that a doctor or other healthcare provider violated their duty of care by failing to show the required level of expertise and skills in their field. They must also show that the victim suffered injury due to the violation.

In the United States, there are 94 federal district courts which are similar to state trial courts. Each of these courts has an ad-hoc jury and judge panel which hears cases. In certain circumstances a medical malpractice attorneys negligence case may be transferred to one of the federal district courts. In the United States, physicians carry medical malpractice insurance to protect themselves from claims of harm that is not intentional. Physicians should understand the structure and functioning of our legal system so that they can react appropriately to a lawsuit brought against them.