How to File a Medical Malpractice Lawsuit

In order to bring an action for medical malpractice against a doctor or hospital, you must have evidence that the defendant has violated their duty to patients. This evidence could be a medical and hospital records.

Our attorneys have extensive experience in taking effective depositions. They could be doctors or other medical professionals 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, in some instances these standards are not met, or even violated. The consequences of this breach can be devastating.

If someone suffers injury or death due to a doctor's malpractice, they may file a lawsuit against the medical professional. To be able to make a legitimate claim, the injured patient must demonstrate that there are four legal elements present: duty, breach of duty, causation and damages.

Malpractice is defined as an act committed by doctors that goes against the accepted norms of the medical profession and results in harm to patients. It is a subset of tort law, which deals with civil wrongs that aren't legal obligations or criminal offenses.

Medical negligence is distinct from normal negligence in that the injured party 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 cuts or nicks one of the nerves or veins during surgery is guilty of negligence but not malpractice. This is because the doctor didn't intend to cause harm to anyone.

In an instance of medical malpractice lawsuits the defendant's obligation is to treat the patient in line with the standard of care that a prudent health care professional of similar experience and expertise would provide in similar circumstances. The breach of this duty is a crucial aspect since it shows that the alleged negligent behavior caused the injury.

Damages

The damages you incur in a case of malpractice are based on the losses you sustained due to the negligence of a physician. This can include both financial losses, like future medical expenses, as well as non-economic damages such as pain and discomfort.

To claim damages, you must prove that the doctor did not fulfill a duty of care, that the doctor's deviation from that standard caused injury, and this injury had quantifiable monetary consequences. This is a complicated legal analysis that usually requires expert witness testimony.

Some of these losses are evident, such as if your doctor made an error that caused an illness or other medical issue that required additional treatment because of it. Other losses are not as evident, like when your doctor has misdiagnosed you and you're unable to get the correct treatment.

If a doctor's error leads to your death, you can sue for the cause of death. In these claims, you are entitled to all the benefits you could have gotten in a survival lawsuit as well as punitive damages.

In the majority of states, there are limitations on the amount you can recover in a malpractice case. These limits vary from state to state and typically apply to both economic and non-economic damages. Certain states also have rules that limit the time it takes to bring a lawsuit.

Time Limits

Like all lawsuits, there are deadlines that must be followed or the case could be barred. A malpractice lawsuit is required to be filed between two and six years after the act occurred. The timeframe for filing a malpractice lawsuit differs by state.

The time limit can be complex, and malpractice lawsuit it is crucial to consult a lawyer immediately. The law firm will conduct an investigation to determine whether a mistake occurred and whether it will be found to be valid in court. This phase can last for up to a few weeks or even months.

Medical malpractice cases are governed by different laws, and the statute of limitations is often altered. For instance in Pennsylvania the patient must file a claim within two years from the time they realized the malpractice or that a reasonable person would have known that the harm existed. This is known as the discovery rule.

In some states the statutes of limitation start to run on the date the malpractice occurred. This can be problematic if the act doesn't immediately cause symptoms. For instance, suppose doctors mistakenly leave a foreign object inside the body after surgery. The patient might not be aware of the foreign object until three or more years after surgery. In that case the statute of limitations might have started to start running from the date of the surgery instead of the moment the error was discovered.

Expert Witnesses

Many medical malpractice cases depend on expert witnesses to explain the facts of the case. The expert of the plaintiff will testify about the duty of the doctor towards the patient, medical requirements for doctors who have similar qualifications in the area and specialization, and the ways in which the defendant's conduct was different from the standard. The expert will then describe how the deviance directly contributed to the injury of the patient.

The defendant will employ an expert to challenge the plaintiff’s expert, and give their professional opinion as to whether the doctor met the requirements of medical care. The experts could disagree but the fact-finder is the one who decides which expert is most credible.

It is better for the expert to be working in the medical field as they will have a more knowledge of the current practice. Jurors and judges typically find practicing professionals more credible than experts whose sole source of income is testimony in court.

It is also recommended to choose an expert who has specialized in the field of malpractice. A medical professional with prior experience treating breast cancer for instance, can provide an argument convincingly as to the cause of an injury. A medical malpractice attorney in Ocala knows which experts to talk to.