How to File a Medical Malpractice Lawsuit

Both lawyers and physicians must spend a significant amount of time and money in a variety of medical malpractice lawsuits. This can include physician hours and work product as well as attorney time court costs as well as expert witness fees and many other costs.

An injury caused by a healthcare professional's negligence, incompetence, error or omission could result in a medical malpractice claim. Victims of injury can seek compensation for financial losses, such as past or future medical expenses as well as non-monetary damages, like pain and discomfort.

Complaint

A medical malpractice case is complex and requires credible proof to be able to prevail. The injured party (or their attorney if they have died) must demonstrate each of the following legal aspects of the claim:

The defendant violated this duty. The defendant erred in his duty. The breach directly caused injury to plaintiff. This aspect of a malpractice claim is called "causation." A breach of the standard of care itself is not a cause of injury; however, it must be shown that the breach directly caused the injury and was the proximate reason for the injury.

To ensure the rights of patients, and to ensure that a physician doesn't commit any further malpractice, it is necessary to file a claim with the state medical board. A report is not a lawsuit, but it can be the first step to initiating the malpractice lawsuit. It is usually recommended to consult with a Syracuse attorney for malpractice prior to filing a report or other type of document.

Summons

A summons or claim is filed in the court and is sent to the defendant doctor as part of the legal procedure. A lawyer appointed by the court for plaintiff will then go over these documents and, if it is found that there could be an incident of malpractice the lawyer will submit a complaint and an affidavit before the court describing the medical error that is claimed to be the cause.

The next step is to collect evidence by pretrial disclosure. This involves making requests for evidence, such as hospital billing and clinic notes, and taking the deposition of the doctor who is defending the case. Attorneys will then inquire with the defendant on oath about his or her knowledge regarding the case.

The information provided will be used by the attorney representing the plaintiff to prove elements of an action for medical malpractice attorney malpractice in the course of trial. This includes the existence of a duty on the physician's part to provide care and treatment to patients; the doctor's infraction of this duty an causal connection between the breach and the patient's injuries or death; and a sufficient amount of damages resulting from the death or injury to warrant a monetary award for compensation.

Discovery

During the discovery phase, both parties are allowed to request evidence relevant to their case. This includes medical records from prior to and after an incident of negligence, information on experts, copies of tax return or other documents related to expenses out of pocket that the plaintiff claims have been paid, as well as the names and contact information of any witnesses who will be testifying in the trial.

Most states have a statute of limitations that permits injured patients the time period of a certain amount of years after a medical error to bring a lawsuit. 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 negligence case the patient who was injured must prove that the doctor's negligence caused a specific harm that is physical pain or loss of income. They must also prove causation -- that is, that the negligent treatment was the sole reason for their injuries or death.

Deposition

Depositions are question and answer sessions that take place in the presence of a court reporter who records both the questions and responses. The deposition is part of the process of discovery, which consists of gathering information that can be used in the course of a trial.

Depositions permit attorneys to ask witnesses, typically doctors to answer a set of questions. When a physician is deposed and asked to answer questions truthfully under the oath. Typically, the doctor is initially questioned by an attorney before being cross examined by another attorney. This is a crucial stage of the case and requires the full concentration and attention of the physician.

A deposition is an excellent way for attorneys to get a detailed background of the doctor, including his education, training and experience. This information is critical to proving that the physician breached the standards of care in your case and that the breach caused you injury. For example, physicians who have been trained in the field of malpractice cases usually declare that they have a vast experience in the execution of specific procedures and techniques that could be relevant to a particular medical-malpractice claim.

Trial

Your lawyer will submit a complaint to the court and a summons. This begins the process of legal disclosure known as discovery. Your doctor and your staff will work together to collect evidence to support your case. This typically consists of medical records as well as testimony from expert witnesses.

The purpose of proving malpractice is to establish that your physician's actions were not in line with the standard of care. Your lawyer must convince jurors that it is more likely than not that your injuries would not have occurred if your physician acted according to the standard of care. Your doctor's lawyers will present defenses that go against the evidence presented by your lawyer.

Despite the common belief that doctors are targets for fraudulent malpractice claims, decades of empirical evidence shows that jury verdicts are based on reasonable estimates of negligence and damages and that juries are skeptical of inflated award amounts. The vast majority of malpractice cases are settled before trial.