How to File a Medical Malpractice Lawsuit

A medical malpractice lawsuit against a hospital or doctor requires proof that the defendant violated his or her duty to patients. This evidence could include hospital and medical documents.

Our lawyers have experience deposing witnesses in a professional manner. They could be doctors, other medical professionals who are working in private practice or are employed at a hospital or clinic.

Negligence

When a patient goes to a doctor, hospital or health care professional, they are entitled to certain standards of medical treatment. Unfortunately, in some cases these standards are not adhered to or even breached. This breach can have devastating results.

If someone suffers injury or death as a result of a physician's malpractice, they may file a lawsuit against the medical professional. To establish a case, an injured patient must establish four legal elements including breach of duty and causation and damages.

Malpractice is defined as an act or omission by an individual physician that is in violation of the norms of practice accepted within the medical profession, and inflicts harm on the patient. It is a part of tort law that is concerned with civil wrongs but not criminal or contractual duties.

Medical negligence is different from regular negligence in that the person who is injured has to prove that the doctor was aware, or should have known that their actions were going to cause harm before they can claim malpractice. Normal negligence doesn't. For example a surgeon who accidentally nicks a nerve or vein during surgery is negligent, but not malpractice as the doctor did not intend to cause harm.

In a medical malpractice attorneys case the defendant is bound by the obligation of treating the patient in accordance with the standards of care that a reasonably competent healthcare professional with comparable experience and training in similar circumstances would provide. The violation of this duty is a crucial element because it demonstrates that the alleged negligent behavior caused the injury.

Damages

In a malpractice lawsuit, damages are based on the losses you have suffered due to a doctor's negligence. These can include both actual financial loss, like the expense of medical treatment in the future, and non-economic losses such as suffering and pain.

To be able to claim damages, you must show that the doctor breached the duty of care, that the doctor's deviation from the standard caused injury, and that the injury caused quantifiable financial consequences. This is a complicated legal analysis that typically requires expert witness testimony.

Some of these losses are obvious like when your doctor made an error that resulted in an infection or other medical problem that required additional treatment in the aftermath. Other damages aren't as evident, like when your doctor misdiagnoses you and you are not able to receive the right treatment.

You are able to sue for wrongful-death if your doctor's negligence causes your death. In these claims you're entitled to everything you could have gotten in a survival lawsuit and punitive damages.

In most states there are limits to the amount you can recover in a malpractice case. These caps differ from state to state and are often applicable to both economic and other damages. Some states also have rules that restrict the time it takes to file a lawsuit.

Time Limits

As with all lawsuits, there are deadlines that must be observed or the case could be dismissed. A malpractice lawsuit is required to be filed between two and six years following the time when the mishap occurred. The exact time frame varies by state.

It is important to talk with an attorney as soon as you can. The law firm will conduct an investigation to determine if there was a malpractice was committed and if it could be able to stand in court. This phase can last for weeks or months.

Medical malpractice cases are governed by different laws, and the statute of limitations is often modified. For example in Pennsylvania a patient must file a claim within 2 years from the date they discovered the malpractice or that a reasonable person would have recognized that the harm existed. This is called the discovery rule.

In some states the statutes of limitation start to run on the date the medical error occurred. This is an issue if the error does not cause immediate symptoms. For example, suppose doctors mistakenly leave an object that is foreign in the body following surgery. The patient may not realize the foreign object until at least three years after surgery. In this instance, the statutes of limitations could have started beginning from the date of the procedure, not necessarily the moment of identifying the error.

Expert Witnesses

Many medical malpractice cases rely on expert witnesses to help explain the details of the case. The expert of the plaintiff will testify regarding the duty of the doctor towards the patient, medical standards for physicians who have similar qualifications in their area and specialization, and the ways in which the defendant departed from the standard. The expert will explain how the departure directly led to the injury suffered by the patient.

The defendant will engage an expert to counter the plaintiff's expert and give their professional opinion on whether or not the doctor was in compliance with the standards of care. Experts could differ but the fact-finder will decide which expert is the most reliable.

It is best that the expert continue to working in the medical field because they'll have better understanding of current practices. Jurors and judges typically consider practicing professionals more believable than experts whose sole source of income is the testifying in court.

It is also recommended to have an expert witness who is skilled in the area of the fraud. For instance a medical professional who is knowledgeable about treating breast cancer can make an argument that is more convincing about the cause of a plaintiff's injury. A knowledgeable Ocala medical malpractice attorney will be aware of the experts to contact for your case.