How to File a Medical Malpractice Lawsuit

Both lawyers and physicians must invest considerable time and funds in many medical malpractice lawsuits. This can include attorney time, court fees expert witness fees, and other expenses.

A medical malpractice claim may be filed in the event that a healthcare professional was negligent or has committed misconduct, made an error, or failed to take action. Injury victims can seek compensation for financial losses, such as future or past medical bills and also non-economic damages, like pain and discomfort.

Complaint

A medical malpractice case is complex and requires credible proof to be successful. The injured patient (or their attorney if they have died) must show each of these legal elements of the claim:

The defendant violated this duty. The defendant did not meet this obligation. The breach directly caused injury to plaintiff. This is referred to as "cause". A breach of a duty of care does not in itself cause injury. It must be proved that it caused the injury directly and was the proximate reason for the injury.

To ensure a patient's rights, and to ensure that a doctor doesn't commit any further malpractice, it is necessary to file a complaint with the state medical board. A report is not a lawsuit but it can be an excellent first step in beginning the process of bringing a malpractice claim. It is often best to speak with an Syracuse lawyer for malpractice before filing a report or other document.

Summons

A summons or claim is filed in court and then sent to the doctor who is defendant as part of the legal procedure. A plaintiff's lawyer who is appointed by the court will review these documents. If it is determined that there is a malpractice issue, the lawyer will file an affidavit and a complaint with the court, describing the possible error.

The next step in the legal process is obtaining evidence through pretrial discovery. This involves submitting requests for evidence such as hospital billing information or clinic notes, as well as taking the defendant physician's deposition in which attorneys ask the defendant on his or his knowledge of the case under an oath.

This information will be used by the plaintiff's lawyer to prove the elements of an action for medical malpractice in the course of trial. This includes the existence of an obligation on the doctor's part to provide care and treatment to patients; the doctor's breach of this duty causality between the breach and the patient's injuries or death and a significant amount of damages that result from the death or injury to justify a monetary award of compensation.

Discovery

During the discovery phase in the discovery phase, both parties are entitled to request evidence that is relevant to their case. This includes medical malpractice attorney records before and after the incident of mishaps, information about expert witnesses and tax returns, copies or other documentation that pertains to the out-of-pocket expenses that the plaintiff claims to have incurred, and the names and contact information for witnesses who are expected to testify at trial.

Most states have a statute of limitation which allows injured patients a certain number of years after a medical error to bring a lawsuit. Those time limits are usually determined by the law of the state and are subject to rules referred to as the "discovery rule."

In order to win a medical malpractice case the patient who was injured must prove that a physician's negligence caused a specific injury that is physical pain or loss of income. They must also prove causation i.e. that the negligent treatment led to their injury or death.

Deposition

Depositions are questions and answer sessions that are conducted in the presence of a court reporter who records both the questions as well as the answers. The deposition is a part of the discovery process, which is the process of gathering evidence that can be used in the trial.

Depositions permit attorneys to ask witnesses, often doctors, a series of questions. When a physician is deposed and asked to answer questions in an honest and open manner under an oath. Usually the physician is asked questions by one attorney and then cross-examined by a different attorney. This is a crucial stage of the case that requires the full concentration and attention of the doctor.

A deposition is a way for attorneys to gain a thorough understanding of the doctor's qualifications in relation to his or her education, training and experience. This information is crucial to prove that the doctor did not meet the standard of care you expect and resulted in injury to you. Doctors who have been trained in this area often be able to prove they have experience performing certain procedures and techniques that may be relevant to a specific medical malpractice case.

Trial

A civil court is launched when your lawyer lodges a complaint and a summons with the appropriate court. This initiates the process of legal disclosure known as discovery. Your doctor and your staff will work together to collect evidence to support your case. This evidence typically includes medical records and testimony from expert witnesses.

The goal of proving negligence is to prove that your doctor's actions did not meet the standard of care. Your lawyer must convince the jury that your injuries would be avoided if your doctor had followed the standard of care. The attorneys for your doctor will present defenses that contradict the evidence presented by your attorney.

Despite the belief that doctors are targets for false claims of malpractice years of evidence show that jury verdicts are based on reasonable assessment of the severity of the damage and negligence and that juries are skeptical of award amounts that are exaggerated. The vast majority of malpractice cases settle prior to trial.