How to File a Medical Malpractice Lawsuit

The filing of a medical malpractice lawsuit against a doctor or hospital requires proof that the defendant has violated his or her obligation to patients. This could include hospital and medical records.

Our lawyers have experience conducting effective depositions of witnesses. These may be doctors or other medical professionals working in private practice, or employees at a clinic or hospital.

Negligence

Patients have the right to receive certain standards of care when they visit a hospital, doctor, or health care professional. Unfortunately these standards aren't always met, or even violated. The results of this breach can be devastating.

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

Malpractice is defined as the act or omission of a physician that deviates from the norms of practice accepted in the medical community and causes injury to the patient. It is a section of tort law that is concerned with civil wrongs not criminal offenses or contractual obligations.

Medical negligence is different from normal negligence in that the person who is injured must demonstrate that the doctor knew, or ought to have known that their actions were likely to cause harm before they are able to claim malpractice. Normal negligence doesn't. A surgeon who accidentally nicks or cuts an artery or nerve during surgery is guilty of negligence but not negligence. This is because the doctor did not intend to cause harm to anyone.

In a medical malpractice case the defendant is bound by an obligation to treat the patient in accordance with the standard of care that a reasonably prudent healthcare professional with the same expertise and training in similar circumstances would provide. The breach of duty is significant because it demonstrates that the negligent act caused the injury.

Damages

In a malpractice case, damages are calculated based on the amount you've suffered due to a physician's negligence. They can be a combination of financial loss, such as the costs of future medical treatment, and non-economic losses like pain and suffering.

To be able to claim damages, you need to show that a doctor has violated a duty and that his violation of the standard of care caused injury, and the injury had quantifiable financial consequences. This is a difficult legal analysis that typically requires expert witness testimony.

Some of these losses are evident like when your doctor made an error that caused an infection or other medical problem and you required further treatment as a result. Some damages are more difficult to spot like when doctors misdiagnose your condition and you cannot get the correct treatment.

You may sue for wrongful deaths in the event that your doctor's negligence results in your death. In these claims, you are entitled to the same amount you would have gotten in a survival case and punitive damages.

In a majority of states, there are restrictions on the amount you can be awarded in a lawsuit for malpractice. These caps vary by state and are usually applicable to both economic and non-economic damages. Certain states also have rules that restrict the length of time you have to wait to make a claim.

Time Limits

Like all lawsuits, there are time limits which must be followed or lawyers the case could be thrown out. In general, a malpractice lawsuit must be filed within two to six years after the medical malpractice arising. The time limit differs by state.

It is crucial to consult an attorney as soon as you can. The law firm will conduct an investigation to determine whether a mistake occurred and if it will be found to be valid in the court. This can take up to a few weeks or even months.

Medical malpractice cases have different laws than other types of cases and often the statute of limitations is extended. In Pennsylvania the patient is entitled to two years from the time that they realized the malpractice. This is known as the discovery rule.

In certain states, the statutes of limitations begin to expire on the date the medical error occurred. This can be an issue if the medical mistake does not trigger any immediate symptoms. Imagine, for instance that a doctor negligently left a foreign body in the body of the patient following surgery. The patient might not discover the object until three years after the procedure. In this situation the statute of limitations could have begun beginning from the date of surgery, not the moment of identifying the error.

Expert Witnesses

Expert witnesses are frequently required to explain facts in medical malpractice cases. The expert of the plaintiff will testify about the duty of the doctor to the patient, medical guidelines for doctors with similar qualifications in the area and specialization, and the ways the defendant deviated from those standards. The expert will then describe how the deviation directly contributed to the injury suffered by the patient.

The defendant will hire a professional to counter the plaintiff’s expert, and then provide their professional opinion on whether the doctor's treatment was consistent with guidelines of care. It is normal for experts to disagree with one with respect to their opinions, but the fact finder determines who is the most reliable based on their knowledge and experience.

It is recommended for the expert to remain working in the medical field since they are more knowledgeable about the current practices. Judges and jurors are likely to consider practicing doctors more trustworthy than experts who rely solely on the testimony of a court.

It is also preferable to use an expert witness who specializes in the field of negligence. For example an expert in medical practice who is knowledgeable about treating breast cancer can provide an argument more convincing regarding the reason for the plaintiff's injury. A seasoned Ocala medical malpractice lawyer will know which expert witnesses to call for your case.