How to File a Medical Malpractice Lawsuit

Both lawyers and doctors have to invest significant time and money in the many lawsuits involving medical malpractice. This includes doctor hours and work product as well as attorney time court costs and expert witness fees and many other costs.

A traumatic injury caused by medical professional's negligence, incompetence, error or omission can lead to medical malpractice claims. Victims of injury can seek compensation for financial losses, such as future or past medical bills and also non-economic injuries, such as pain and discomfort.

Complaint

A medical malpractice case is complex and requires credible proof to be successful. The injured patient or their attorney should the patient die, must be able to prove each of these elements:

A hospital or doctor was required to act according to the standards of care in force. The defendant violated that obligation. The breach directly caused injury to the plaintiff. This is referred to as "cause". A breach of a standard of care does not in itself cause injury. It must be proven that it caused the injury directly and was the proximate reason for the injury.

It is sometimes required to file a complaint with a state medical body to protect the rights of the patient and to ensure that the doctor doesn't commit additional errors. A report is not a lawsuit but it can be the first step to initiating the malpractice lawsuit. It is recommended to speak with an Syracuse malpractice attorney prior to filing any report or document.

Summons

A summons or claim is filed in a courtroom and sent to the doctor who is defendant as part of the legal procedure. A lawyer appointed by the court for plaintiff will then look over the documents and, if they believe that there could be an instance of malpractice the lawyer will file a complaint and affidavit before the court describing the medical error that is claimed to be the cause.

The next step is obtaining evidence through pretrial disclosure. This involves submitting requests for evidence like hospital billing records or clinic notes, as well as taking the defendant physician's deposition during which lawyers ask the defendant about his or their knowledge of the matter under an oath.

The information provided will be used by the lawyer for the plaintiff to prove the elements of an action for medical malpractice during trial. The elements of a medical malpractice claim include the existence of a duty on the part of the doctor to provide medical and treatment to patients, the physician's failure to fulfill this duty, a causal link between the breach and the injury or death of the patient and the amount of damages to warrant a monetary compensation award.

Discovery

During the discovery phase where both parties are permitted to request evidence that is relevant to their case. This includes medical malpractice attorney records prior to and after the incident of an alleged malpractice, details about expert witnesses and tax returns, copies or other documents relating to expenses out of pocket that the plaintiff claims were incurred and the names and contact details for any witnesses who will appear at trial.

The majority of states have a statute of limitation that permits injured patients some time after an injury or medical mistake to make a claim. These time limits are typically determined by the law of the state and are subject to rules called the "discovery rule."

To prevail in a medical malpractice lawsuit, an injured patient must prove that the doctor's negligence resulted in a specific injury, like physical pain or loss of income. They must also prove causation -- that is, that the negligent treatment was directly responsible for their injury or death.

Deposition

Depositions are question and answer sessions that are conducted in front of a court reporter who records both the questions as well as the answers. Depositions are part of the discovery process in which the parties collect evidence to use in the trial.

Depositions allow attorneys to question witnesses, often doctors, a series of questions. When a physician is deposed, he or she must answer all questions honestly under oath. Usually, the physician is initially questioned by an attorney and then the attorney is cross-examined by another attorney. This is an important stage in the case and the physician must focus on it with complete attention.

Depositions allow lawyers to gain a thorough understanding of the doctor's qualifications in relation to his or her education, training and experience. This information is essential for prove that the doctor did not meet the standards of care in your particular case and ivimall.com that the breach directly caused injury to you. Physicians who have been educated in this field will typically testify they have extensive experience performing specific procedures and techniques that could be relevant to an individual medical-malpractice case.

Trial

Your lawyer will make a complaint to the court and will issue a summons. This begins the process of legal disclosure, also known as discovery. You and your doctor's staff will work together to gather evidence to support your case. The evidence typically includes medical records as well as testimony of an expert witness.

The goal of proving malpractice is to prove that the actions of your doctor did not meet the standard of care. Your lawyer must convince the jury that your injuries would have been prevented if your doctor had followed the standard of care. The lawyer for your doctor will present defenses that go against the evidence presented by your attorney.

Despite folklore suggesting that doctors are targets for malpractice claims that are not meritorious, years of empirical research has shown that jury verdicts generally reflect reasonable assessments of negligence and damages and that juries are skeptical about overinflated damages awards. The majority of malpractice cases are settled prior to trial.