How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits can be very complicated. There are specific guidelines to be adhered to including a certain time period in which the suit can be filed.

The claimant also has to prove that the doctor's actions caused injuries and losses. This will require medical and hospital records.

Complaint

Your attorney will submit a court complaint as well as summons once he or she has found evidence of malpractice. The complaint names the defendants in your case, and clearly outlines the allegations you are making against them.

Malpractice claims are founded on the premise that nurses, doctors or other healthcare providers owe a patient the highest standard of care. This standard is defined as the level of expertise and prudence that a reasonable medical professional with the same training would apply in similar circumstances. Your legal team will have to show that your doctor did not meet this standard which resulted in injuries from which you sustained damages quantifiable.

A physician's standard of care is often an issue of opinion and malpractice lawsuit can be difficult to prove. It is essential to find an attorney who has access to experts in the field of medicine to testify on what a reasonable doctor would have done.

Not only doctors make mistakes, but so can hospital personnel, like nurses and anesthesiologists. This is especially true for emergency room staff where mistakes are frequently made due to a busy environment and overworked staff. Your attorney may be able to obtain testimony from experts in the emergency room who can provide evidence of what should have been done and why your doctor's actions fell short of this standard.

Discovery

During the discovery process your lawyer will gather and examine evidence that may prove a malpractice claim. This includes medical records, witness statements, expert testimony and more. The legal team of the other side will also have the opportunity to request the information from you and your attorney. This is done through interrogatories or requests for documents. Certain materials may be privileged and secret due to privacy laws, for instance HIPAA's Privacy Rule.

You must also prove that your injury is due to the doctor's negligence. This is the most challenging part of a malpractice case since it requires expert witness testimony that supports your claim.

Your lawyer will also interview witnesses who can prove the doctor was negligent. This can include radiologists, dentists nurses, assistants, nurses and other people who were involved in the treatment of your health. Your attorney will know how to take effective and strong depositions in order to get these witnesses admitting that the doctor's negligence was a factor.

The majority of lawsuits are settled before they go to trial. In medical malpractice cases it is a common practice as the costs of going to trial can be expensive. Once the facts of your case are established, a settlement can be agreed upon between you and the insurer of your doctor. If a settlement isn't possible the case will proceed to trial.

Trial

Your lawyer will file a complaint after conducting the initial investigation. If they find that you have a compelling case for malpractice, they will file the complaint. The complaint will clearly state your allegations and be served on the defendant along with a summons.

Discovery is the next phase. This includes the exchange of medical records and depositions of witnesses. Your lawyer will use the statements to prove that your doctor violated the standard of care. The objective is to prove that the error was caused by the negligence of the doctor, and caused damage.

In addition to the witness's testimony Your medical malpractice lawyer will work with one or two expert witnesses to back up your claim. They will be provided with medical records and details regarding your case to prepare for their depositions and testimony. They can also assist in the preparation of your case for trial.

Your attorney will start talks with the defense as part of the preparation for trial. The process continues throughout the trial, and can last for many years. In this time, you are recovering from your injuries and determining the magnitude of your damages. It is in everyone's best interests to settle out of court whenever it is possible. Your lawyer will carefully weigh the merits of a settlement against your current and long-term recovery. If the settlement is reasonable your lawyer will convince you to accept it.

Damages

During the discovery phase, plaintiffs will need to show that their losses are significant and that negligence on the part of the defendant contributed to these damages. If, for example, the doctor failed to inform the patient of the 30% possibility that the procedure might result in the loss of a leg, and the surgery was successful, but the patient lost an arm or limb, the doctor could be held responsible for malpractice.

To be able to bring a valid malpractice lawsuit, the victim must also show that a competent lawyer could have been able prevent their financial loss or at least minimize the size. This is commonly referred as the "but for" test. In addition, it is essential to prove that the plaintiff incurred costs to pursue a successful legal claim that are more than the amount demanded as compensation.

Our medical malpractice law firm lawyers are able to provide a detailed explanation of the various types of damages that could be caused by a malpractice lawsuit including past, present and future medical expenses and lost income, as well as suffering and pain and suffering, and other economic and non-economic losses. In general, the more serious the injury, higher the amount of compensation. However, a ruling that is successful can sometimes be overturned upon appeal. Settlements outside of court can be beneficial for certain clients. It can save money as well as time on court costs. It also helps avoid the possibility of a jury deciding a case based on emotions rather than facts.