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 as well as court fees expert witness fees, and other expenses.

A medical malpractice case can be filed when a healthcare professional is negligent, has committed misconduct, made an error, or failed to take action. Victims of injury can seek compensation for economic losses, like past or future medical bills, as well as noneconomic damages, like discomfort and pain.

Complaint

A medical malpractice lawsuit is a complex one and requires credible proof for success. The injured person or their attorney in the event that the patient has passed away must show each of these legal elements:

The hospital or doctor had a responsibility to follow the applicable standard of care. The defendant violated that obligation. That the breach directly caused injury to the plaintiff. This aspect of a malpractice claim is called "causation." A breach of the standard of care is not a cause of injury; it must be proven that the breach directly caused the injury and was the proximate cause of the injury.

To protect the rights of a patient, and to ensure that a doctor does not continue to commit errors, it is required to file a report with the state medical malpractice attorneys board. A report is not a lawsuit, but it could be an excellent first step in initiating the malpractice lawsuit. It is recommended to talk with a Syracuse malpractice attorney before filing any report or document.

Summons

A summons or claim is filed in court and sent to the doctor who is defendant as part of the legal process. A plaintiff's lawyer appointed by the court will look over the documents. If it appears there is a malpractice issue and the lawyer files an affidavit as well as a complaint with the court, detailing the claimed mistake.

The next step is to gather evidence by pretrial disclosure. This involves submitting requests to document such as hospital invoices as well as notes from clinics and taking the deposition of the defendant's physician, where attorneys question the defendant about his or their knowledge of the matter under oath.

The information provided will be used by the attorney representing the plaintiff to prove the elements of a medical malpractice claim during trial. This includes the existence of a duty on the doctor's part to provide medical care and treatment to patients; the doctor's breach of this duty; causality between the breach and the patient's death or injury; and a sufficient amount of damages that result from the injury or death to warrant a monetary award for compensation.

Discovery

During the discovery process, both sides are entitled to request and receive evidence relevant to the case. This includes medical records that were taken prior to and after an incident of negligence, information about experts, copies of tax return or other documents related to expenses out of pocket that the plaintiff claims to have caused, and the names and contact information of any witnesses who will be appearing in the trial.

There are many states with a statute of limitations that limit the time a patient has to pursue a lawsuit after being injured due to medical error. These time limits are typically determined by the law of the state and they are subject to rules referred to as the "discovery rule."

To prevail in a medical malpractice case the injured person must show that a doctor's negligence caused a specific harm for example, 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 essentially question-and-answer meetings that take place in the presence of a court reporter who takes notes of the questions as well in the responses. The deposition is part of the discovery process which is about gathering information that can be used in a trial.

Depositions allow attorneys to ask witnesses, typically doctors, a series of questions. When a doctor is questioned and asked to answer questions truthfully under oath. Typically, the doctor is initially questioned by an attorney and then cross examined by another attorney. This is an important stage in the trial and the physician must pay attention to it with all their heart.

A deposition is a fantastic way for attorneys to get an extensive background on the doctor, including his education, training and experience. This information is essential for showing that the doctor violated the standard of care in your case and that the breach directly caused you harm. For example, physicians who have trained in the field of malpractice cases usually testify that they have vast experience in performing certain procedures and techniques that may be relevant to a specific medical malpractice claim.

Trial

Your lawyer will file a complaint with the court and will issue a summons. This initiates the legal disclosure process known as discovery. Your doctor and your team will collaborate to gather evidence to support your case. This typically consists of medical records and testimony from experts.

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

Despite the common belief that doctors are the target of unsubstantiated claims of malpractice Evidence from decades show that juries make reasonable estimates of negligence and damages, and that juries are skeptical of large amounts of money awarded. The vast majority malpractice cases are settled prior to trial.