How to File a Medical Malpractice Lawsuit

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

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

Complaint

A medical malpractice claim is a complex matter and requires proof of credibility to be successful. The injured patient or their attorney, in the event that the patient has passed away must demonstrate each of these legal elements:

A hospital or doctor was required to act according to the applicable standard of care. The defendant failed to meet this duty. The breach directly caused injury to plaintiff. This is referred to as "cause". A breach of a standard of care will not in itself cause injury. It must be proven that it caused the injury directly and was the main reason for the injury.

In order to protect a patient's rights, and to ensure that a physician is not committing further errors, it is required to file a complaint with the state medical board. A report is not a lawsuit, lawyers however, it is the first step to starting the malpractice claim. It is recommended to speak with a Syracuse malpractice attorney before filing any report or document.

Summons

As part of the legal process, a summons or claim forms is filed with the court and delivered to the defendant doctor. A lawyer appointed by the court will review the documents. If it appears that there is a malpractice case the lawyer is required to file an affidavit and complaint with the court, describing the alleged mistake.

The next step is obtaining evidence by pretrial disclosure. This involves submitting requests to document such as hospital billing information as well as notes from clinics and taking the defendant physician's deposition where lawyers question the defendant on his or her knowledge of the case under oath.

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

Discovery

During the discovery process both sides are able to request and receive evidence that is relevant to the case. This includes medical records prior to and after the alleged malpractice, information about expert witnesses and tax returns or other documentation related to expenses out of pocket that the plaintiff claims they incurred, as well as the names and contact details for any witnesses who be present at trial.

Most states have a statute of limitation which allows injured patients an amount of time after a medical error to bring a lawsuit. Those time limits are usually set by law of the state, and are subject to a rule known as the "discovery rule."

In order to win a medical malpractice claim the patient who was injured must show that a doctor's negligence caused a specific injury for example, 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 conducted in the presence of the court reporter who takes notes of both the questions as well as the answers. The deposition is an element of the discovery process, which is the process of gathering evidence that can be used in a trial.

Attorneys can pose a number of questions to witnesses, typically doctors. If a physician is interrogated and questioned, they must answer all questions truthfully under oath. Typically, the doctor is first interrogated by an attorney and later interviewed by another attorney. This is an important stage in the trial and the doctor must be attentive to the case.

A deposition is a fantastic way for attorneys to get an extensive background on the doctor, including his or their education, training, and experience. This information is crucial in convincing the court that the doctor did not adhere to your standard of care and that this breach caused injury. For example, physicians who have been trained in the field of malpractice cases generally testify that they have vast experience in the execution of certain procedures and methods that could be relevant to a specific medical-malpractice claim.

Trial

A lawsuit in a civil court is officially initiated when your lawyer lodges a complaint and a summons with the court of your choice. This begins a legal process of disclosure known as discovery where you and lawyers your doctor's team collaborate to collect information to prove your case. The evidence typically includes medical records as well as testimony from an expert witness.

The goal of proving negligence is to establish that the actions of your doctor did not meet the standards of care. Your lawyer must convince the jury that your injuries would be avoided if your doctor had acted in accordance with the standard of care. Your doctor's lawyers will argue arguments that do not agree with the evidence presented by your attorney.

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