How to File a Medical Malpractice Lawsuit

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

A medical malpractice case can be filed when a healthcare professional is negligent, has committed misconduct, made an error, or failed to take action. The injured party may be able to seek compensation damages, including the actual economic losses such as future and past medical bills as well as non-economic expenses like pain and suffering.

Complaint

A medical malpractice case is complex and requires credible proof to be successful. The person who was injured (or their attorney if they've died) must be able to prove each of the following legal elements of the claim:

The defendant breached that obligation. The defendant failed to meet this duty. The breach directly caused injury to the plaintiff. This is referred to as "cause". A breach of a duty of care cannot necessarily cause injury. It must be demonstrated that it caused the injury directly and was the primary reason for the injury.

To protect the rights of a patient and to ensure that a doctor doesn't commit any further errors, it is required to file a report with the state medical board. However, filing a report does not start an action, and is often just a first step to getting the malpractice case moving. It is best to consult a Syracuse malpractice attorney prior to making any report or other 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 lawyer appointed by the court will look over these documents. If it appears that there is a malpractice case the lawyer will file an affidavit and complaint with the court, detailing the alleged mistake.

The next step is to collect evidence through pretrial disclosure. This involves making requests for evidence, such as hospital billing and notes from clinics, and taking depositions of the defendant's doctor. Attorneys will then ask the defendant on oath about the details of the case.

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

Discovery

During the process of discovery both sides are able to seek and receive evidence pertinent to the case. This includes medical records prior to and after an incident of negligence, details about experts and tax returns or other documentation related to expenses out of pocket the plaintiff claims to have incurred, and the names and contact details of witnesses who are expected to testify at trial.

The majority of states have a statute of limitations that limit the time a patient has to seek compensation for injuries caused by Medical Malpractice Attorney error. The length of time is determined by the laws of the state and are subject to a regulation known as the "discovery rules."

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

Deposition

Depositions are question-and-answer sessions that take place in the presence a court reporter, who records the questions as well and the answers. The deposition is part of the discovery process, which consists of gathering information that can be used in the course of a trial.

Attorneys may ask a series of questions to witnesses, usually doctors. 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 an attorney and then cross-examined by another attorney. This is a crucial stage of the case and requires the full attention and focus of the doctor.

A deposition is a great way for attorneys to obtain an extensive background on the doctor, including his or their education, training, and experience. This information is essential to prove that the doctor did not meet the standard of care in your situation and that the breach caused injury to you. Physicians who have been educated in this area are likely to testify they have extensive experience with certain procedures and techniques that may be relevant to your particular medical-malpractice case.

Trial

Your lawyer will file a complaint with the court and issue a summons. This begins a legal process of disclosure, also known as discovery, which is where you and your doctor's team collaborate to collect evidence to support your case. This evidence typically includes medical records as well as testimony from expert witnesses.

The goal of proving negligence is to prove that your physician's actions were not in line with the standard of care. Your lawyer must convince a jury that it is more likely than not your injuries could not have occurred had your doctor followed the standard of care. Your doctor's lawyers will present arguments that are contrary to the evidence that your attorney has presented.

Despite the common belief that doctors are the target of unsubstantiated claims of malpractice, decades of empirical evidence show that jury verdicts reflect fair assessments of damages and negligence and that juries are skeptical of excessive award amounts. The majority of malpractice cases settle prior to trial.