How to File a Medical Malpractice Lawsuit

Many medical malpractice cases require a lot of time and resources from both doctors and attorneys. This can include physician hours and work product, attorney time court costs as well as expert witness fees and many other costs.

A serious injury that is the result of medical professional's negligence, incompetence, error or omission can give rise to a medical malpractice claim. Victims of injury may seek compensation damages, which include economic loss, such as the future and past medical bills as well as non-economic damages like pain and suffering.

Complaint

A medical malpractice lawsuit has many moving parts, and requires evidence that is credible evidence to prevail. The injured patient (or their attorney if they've died) must show each of these legal elements of the claim:

The defendant breached that obligation. The defendant breached this duty. That the breach directly caused injury to the plaintiff. This is referred to as "cause". A breach of a duty of care cannot cause injury on its own. It must be shown that it caused the injury directly and was the primary cause for the injury.

It is sometimes necessary to file a complaint with a state medical body to protect the rights of the patient and to ensure that the doctor does not commit additional mistakes. A report is not a lawsuit but it can be a good first step in getting the malpractice claim started. It is advisable to speak with a Syracuse malpractice attorney before filing any 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 process. A lawyer for the plaintiff appointed by the court will look over these documents. If it appears that there could be a malpractice claim, the lawyer will file an affidavit as well as a complaint with the court, describing the alleged mistake.

The next step is to gather evidence through pretrial disclosure. This involves submitting requests for documentation, such as hospital billing or clinic notes, and taking depositions of the defendant physician. Attorneys will then ask the defendant under oath regarding their knowledge of the case.

The information provided will be used by the plaintiff's lawyer to establish the elements of a claim for medical negligence in court. The elements of a medical malpractice claim include the existence of an obligation on the part of the doctor to provide treatment and care to patients, the physician's violation of this duty and a causal connection between the breach and the injury or death of the patient, and enough damages to warrant a monetary compensation award.

Discovery

During the discovery phase during the discovery phase, both parties are able to request evidence that is relevant to their case. This includes medical malpractice attorneys records before and after the incident of an alleged malpractice, details about experts and tax returns, copies or other documents relating to the out-of-pocket expenses that the plaintiff claims were incurred, as well as the names and contact details for witnesses who are expected to testify at trial.

The majority of states have a statute of limitations that permits injured patients an amount of time after an injury or medical mistake to make a claim. The time limit is set by state laws and are subject to a law known as the "discovery rules."

To win a medical malpractice lawsuit, the patient has to prove that the doctor's negligence caused specific harm, like physical pain or loss of income. They must also prove causation -meaning, that the negligent treatment was directly responsible for their injury or death.

Deposition

Depositions are question-and-answer sessions that are conducted in the presence a court reporter, who records the questions as well and the answers. The deposition is an element of the discovery process through which the parties collect evidence to be used in the trial.

Attorneys are able to ask a series of questions to witnesses, mostly doctors. When a doctor is questioned they must answer all questions honestly under the oath. Typically, the doctor is asked questions by one attorney, and then cross-examined by a different attorney. This is a crucial phase of the case and requires the full concentration and attention of the physician.

Depositions allow lawyers to obtain a detailed background on the doctor's background in terms of his or the training, education and experience. This information is essential to establish that the doctor violated the standards of care in your case and that the breach resulted in injury. For instance, doctors who have been trained in the field of malpractice cases generally be able to prove that they have a lot of experience in performing certain procedures and techniques that could be relevant to a particular medical malpractice attorneys malpractice case.

Trial

A lawsuit in a civil court is formally launched when your lawyer lodges a complaint and a summons with the appropriate court. This triggers a legal procedure of disclosure, referred to as discovery where you and your physician's team work together to gather evidence to support your case. This usually includes medical records and the testimony of experts.

To prove malpractice you must prove that your doctor's actions were not in line with the standard of care. Your lawyer must convince the jury that your injuries would be prevented if the doctor had followed the standard of care. The lawyer representing your doctor will argue defenses which contradict the evidence presented by your lawyer.

Despite the legend that doctors are targets for malpractice claims that are frivolous, years of empirical research has shown that jury verdicts tend to reflect reasonable evaluations of damages and negligence and that juries are skeptical about overinflated damages awards. The vast majority of malpractice cases are settled before trial.