How to File a Medical Malpractice Lawsuit

Lawyers and doctors must invest considerable time and funds in many medical malpractice lawsuits. This investment includes attorney time court fees, expert witness fees and other expenses.

A medical malpractice claim can be filed if a healthcare professional is negligent, has committed misconduct or committed a mistake or failed to act. Victims of injury may seek compensation damages, including the actual economic losses such as future and past medical bills, as well as noneconomic damages like pain and suffering.

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 should the patient die, must show each of these legal elements:

The defendant did not fulfill that obligation. The defendant erred in his obligation. The breach directly caused injury to the plaintiff. This element is known as "cause". A breach of a standard of care doesn't cause injury on its own. It must be demonstrated that it directly caused the injury and was the main reason for the injury.

In order to protect the rights of a patient, and to ensure that a doctor does not continue to commit mistakes, it is essential to file a report with the state medical board. However, filing a complaint does not initiate an action and is usually just a step towards moving 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 procedure, the summons or claim form is filed with the court and then handed to the doctor who is the defendant. A lawyer appointed by the court for the plaintiff will review the documents and, if they believe that there could be a case of malpractice then they will submit a complaint and an affidavit to the court detailing the alleged medical error.

The next step is to collect evidence through pretrial disclosure. This involves the submission of requests for documentation like hospital billing and clinic notes, as well as taking the deposition of the defendant's physician. Attorneys will then question the defendant on oath about his or her knowledge of the case.

The information provided will be used by the lawyer for the plaintiff to prove the elements of an action for medical malpractice at trial. The elements of a medical malpractice; Full Record, case include the existence of an obligation on the part of the physician to provide medical and treatment to patients, the physician's infraction of this obligation as well as a causal connection between the breach and injury or death of the patient and the amount of damages to warrant a monetary award.

Discovery

During the process of discovery both sides are entitled to request and receive evidence relevant to the case. This includes medical records prior to and after an incident of alleged negligence, information regarding experts as well as copies of tax returns or other documents relating to expenses out of pocket the plaintiff claims have been caused, and the names and contact information of any witnesses who are expected to testify during the trial.

Most states have a statute of limitations that allows injured patients only the time period of a certain amount of years after a medical error to pursue a lawsuit. The length of time is typically set by law of the state, Medical malpractice and they are subject to rules known as the "discovery rule."

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

Deposition

Depositions are question and answer sessions that are conducted in front of a court reporter who documents both the questions and answers. The deposition is part of the discovery process which is the process of gathering evidence that can be used in the trial.

Depositions permit attorneys to ask witnesses, usually doctors, a series of questions. If a physician is interrogated, he or she must answer each question truthfully under the oath. Usually the physician is asked questions by one attorney, and then cross-examined by another attorney. This is a crucial phase of the process and requires the complete attention and focus of the doctor.

Depositions allow lawyers to get a complete background on the doctor's background in terms of his or her education, training and experience. This information is critical to showing that the doctor violated the standards of care in your particular case and that the breach directly caused you harm. Physicians who have been trained in this area often testify they have extensive experience in performing certain techniques and procedures that could be relevant to an individual medical malpractice case.

Trial

Your lawyer will make a complaint to the court and issue a summons. This triggers a legal procedure of disclosure, referred to as discovery where you and the doctor's team work together to gather information to prove your case. This evidence usually includes medical records as well as testimony of an expert witness.

To prove malpractice it is essential to establish that the doctor's actions were not in line with the standard of care. Your lawyer must convince a jury that it is more likely than not that your injuries wouldn't have occurred if your physician acted according to the standards of care. Your doctor's lawyers will present arguments that do not agree with the evidence that your attorney has presented.

Despite the myth that doctors are the target of fraudulent malpractice claims, decades of empirical evidence confirm that juries make reasonable assessments of damages and negligence and that juries tend to be skeptical of award amounts that are exaggerated. The vast majority of malpractice cases settle prior to trial.