How to File a Medical Malpractice Lawsuit

Many medical malpractice cases require a lot of time and resources from both physicians and lawyers. This can include attorney time, court fees expert witness fees, court costs and other costs.

A traumatic injury caused by an healthcare professional's negligence, firm mistake, or omission could result in a medical malpractice claim. Plaintiffs seeking compensation for injuries can file for economic losses, such as past or future medical bills, as well as noneconomic injuries, such as discomfort and pain.

Complaint

A medical malpractice case is a complicated one and requires a solid proof of the claim to be able to prevail. The patient who has been injured (or their attorney if they've lost their claim) must prove each of the following legal aspects of the case:

That a doctor or hospital was required to act in accordance with the standard of care applicable. The defendant erred in his duty. That the breach directly caused injury to the plaintiff. This is referred to as "cause". A breach of a duty of care doesn't in itself cause injury. It must be demonstrated that it directly caused the injury and was the primary cause for the injury.

To ensure the rights of a patient and firm to ensure that a doctor is not committing further errors, it is required to file a report with the state medical board. A report is not a lawsuit, but it could be the first step to getting the malpractice claim started. It is generally recommended to speak with an Syracuse attorney for malpractice prior to filing a report or other document.

Summons

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

The next step is to gather evidence through pretrial disclosure. This involves submitting requests for evidence such as hospital billing information as well as notes from clinics and taking the deposition of the defendant's physician in which attorneys ask the defendant on his or his knowledge of the situation under oath.

This information will be utilized by the lawyer representing the plaintiff to prove the elements of a claim for medical negligence in the course of trial. These include the existence of a duty on the physician's part to provide care and treatment to patients; the doctor's breach of this duty causality between the breach and the patient's injuries or death; and a sufficient amount of damages resulting from the injury or death to be able to justify a monetary compensation.

Discovery

During the process of discovery each side is entitled to request and receive evidence relevant to the case. This includes medical records that were taken prior to and after an incident of negligence, information on experts and tax returns, copies of the tax return or other documents relating to out-of-pocket expenses that the plaintiff claims to have incurred, and the names and contact information of witnesses who will be appearing in the trial.

There are many states with a statute of limitations that limit the length of time that a patient is allowed to sue after being injured by medical error. The time limit is usually determined by the law of the state and they are subject to rules known as the "discovery rule."

To win a medical malpractice lawsuit, the patient must prove that the doctor's negligence caused specific harm, like physical pain or loss of income. They must also prove causation -- that is, that the negligent treatment was the sole reason for their injury or death.

Deposition

Depositions are question-and-answer sessions that take place in the presence a court reporter, who will record the questions as as the answers. The deposition is an element of the discovery process in which the parties gather information to use in a trial.

Depositions permit attorneys to ask witnesses, typically doctors for a series of questions. If a doctor is deposed and questioned, they must answer all questions truthfully under oath. Usually the physician is asked questions by one attorney and later cross-examined by a second attorney. This is a crucial phase of the process and requires the complete attention and focus of the physician.

Depositions are a great way for attorneys to obtain a detailed background of the doctor, including his education, training and experience. This information is crucial to proving the doctor breached your standards of care and that this breach caused you harm. Doctors who have been trained in this area are likely to affirm that they have years of experience performing specific procedures and techniques that may be relevant to an individual medical malpractice case.

Trial

A lawsuit in a civil court is officially launched when your lawyer files a complaint and summons with the court of your choice. The process begins with a legal requirement of disclosure, referred to as discovery where you and your doctor's team collaborate to collect information to prove your case. This typically consists of medical records and the testimony of expert witnesses.

To prove malpractice it is necessary to prove that the actions of your doctor were not in accordance with the standards of care. Your lawyer must convince jurors that it is more likely than not that your injuries wouldn't have occurred if your doctor acted in accordance with the standard of care. The attorneys for your doctor will present arguments that do not agree with the evidence presented by your lawyer.

Despite the myth that doctors are targets for unsubstantiated claims of malpractice years of evidence confirm that jury verdicts are based on reasonable judgments of negligence and damages and that juries are skeptical of award amounts that are exaggerated. The vast majority malpractice cases are settled prior to trial.