How to File a Medical Malpractice Lawsuit

Many medical malpractice cases require a lot of time and resources from both physicians and lawyers. This includes attorney time court fees expert witness fees, and other expenses.

A medical malpractice lawyers malpractice claim may be filed in the event that a healthcare professional has been negligent or has acted in a manner that is illegal, made an error, or acted in a way that was not. Injury victims can seek compensation for economic losses, like future or past medical expenses and also non-economic damages, like discomfort and pain.

Complaint

A medical malpractice claim is a complex matter and requires a solid proof of the claim for success. The person who was injured, or their attorney in the event that the patient has passed away, must prove each of these legal elements:

The hospital or doctor had a responsibility to act according to the standards of care in force. The defendant violated this duty. The breach directly caused injury to the plaintiff. This element 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 proven that the breach directly caused the injury and was the main cause of the injury.

It is sometimes necessary to file a formal complaint to a state medical board in order to protect the rights of the patient and ensure that the doctor doesn't commit any further negligence. A report is not a lawsuit however, it is an excellent first step in getting the malpractice claim started. It is generally recommended to consult with a Syracuse attorney for malpractice prior to filing a report, or any other type of document.

Summons

A summons or claim is filed in court and sent to the defendant doctor as part of the legal procedure. A lawyer appointed by the court will go through the documents. If it is determined that there could be a malpractice claim, the lawyer will file an affidavit, along with a complaint to the court, detailing the suspected error.

The next step is to obtain evidence by pretrial disclosure. This involves submitting requests for documentation like hospital billing and clinic notes, and taking depositions of the defendant's physician. Attorneys will then inquire with the defendant under oath about their knowledge of the case.

This information will be utilized by the lawyer representing the plaintiff to establish the elements of a claim for medical malpractice in the course of trial. The elements of a medical malpractice claim include the existence of a duty on the part of the doctor to provide treatment and care to patients, the doctor's infraction of this obligation and a causal link between the breach and injury or death of the patient, and an amount of damages sufficient to warrant a monetary award.

Discovery

During the process of discovery both sides are allowed 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 regarding experts and tax returns, copies of the tax return or other documents relating to out-of-pocket expenses that the plaintiff claims have been attributable to them, and the names and contact details of any witnesses who will testify in the trial.

Most states have a statute-of limitations that limits the amount of time a patient can sue after being injured by medical error. The length of time is typically set by law of the state, and they are subject to rules referred to as the "discovery rule."

To prevail in a medical malpractice lawsuit, the injured patient must show that the doctor's negligence caused a specific injury such as physical pain, or loss of income. They must also prove causation, i.e. that the negligent treatment resulted in their death or injury.

Deposition

Depositions are question-and-answer sessions that are conducted in front of the court reporter who takes notes of both the questions and responses. The deposition is an element of the discovery procedure, which is about gathering information that can be used in the trial.

Attorneys are able to ask a series of questions to witnesses, mostly doctors. If a doctor is interrogated and questioned, they must answer all questions in an honest and open manner under oath. Typically, the doctor is asked questions by an attorney and later cross-examined by a second attorney. This is a crucial stage of the process and requires the full concentration and attention of the physician.

A deposition allows attorneys to obtain a detailed background on the doctor in terms of his or her education, training and experience. This information is essential for proving that the physician breached the standards of care in your case and that the breach caused injury to you. Physicians who have been trained in this area often declare that they have experience with specific procedures and techniques that could be relevant to an individual medical-malpractice case.

Trial

A civil court is launched when your lawyer files a complaint and summons with the court of your choice. The process begins with a legal requirement of disclosure, referred to as discovery which is where you and your doctor's team collaborate to collect evidence to support your case. This usually includes medical records as well as testimony from expert witnesses.

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

Despite the belief that doctors are targets for frivolous malpractice claims, decades of research on the subject shows that jury verdicts generally reflect fair assessments of negligence and damages, and that juries are skeptical of overinflated damages awards. The vast majority of malpractice cases are settled prior to trial.