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How to File a Medical Malpractice Lawsuit

Both physicians and lawyers must invest significant time and money in a variety of medical malpractice lawsuits. This can include physician hours and work product, attorney time court costs as well as expert witness fees and countless other expenses.

A traumatic injury caused by a healthcare professional's negligence, incompetence, error or omission could result in a medical malpractice claim. Victims of injury can seek compensation for medical malpractice attorneys economic losses, including future or past medical malpractice law firm expenses, as well as noneconomic damages, like discomfort and pain.

Complaint

A medical malpractice lawsuit is made up of many moving parts and requires credible evidence to prevail. The injured patient (or their attorney if they've passed away) must be able to prove each of the following legal elements of the claim:

The defendant breached the duty. The defendant breached this duty. That the breach directly caused injury to the plaintiff. This element is known as "cause". A breach of a standard of care cannot in itself cause injury. It must be proven that it directly caused the injury and was the main reason for the injury.

It is sometimes necessary to file a claim to a state medical board in order to safeguard the rights of the patient and to ensure that the doctor does not commit any further errors. But, filing a report is not the start of an action and is usually only a first step in moving the malpractice claim. It is usually recommended to consult with a Syracuse malpractice lawyer before filing a report, or any other type of document.

Summons

A summons or claim is filed in court and sent to the doctor who is defendant as part of the legal procedure. A lawyer appointed by the court for plaintiff will review the documents and, if it appears that there is an issue with malpractice, they will file a complaint and affidavit to the court detailing the medical error that is claimed to be the cause.

The next step in the legal process is obtaining evidence through pretrial discovery. This involves submitting requests for documentation including hospital billing and clinic notes, as well as taking the deposition of the defendant physician. Attorneys then will question the defendant under oath as to their knowledge of the case.

The information provided will be used by the lawyer for the plaintiff to establish the elements of a claim for medical negligence in the course of trial. This includes the existence of a duty on the doctor's part to provide care and treatment to patients; the doctor's infraction of this duty causality between the breach and the patient's injury or death and a sufficient amount of damages resulting from the injury or death to warrant a monetary award for compensation.

Discovery

During the discovery phase in the discovery phase, both parties are entitled to request evidence that is relevant to their case. This includes medical records before and following the an alleged malpractice, details about experts and tax returns, copies or other documentation related to expenses out of pocket that the plaintiff claims were incurred, along with the names and contact information for witnesses who are expected to be present at trial.

The majority of states have a statute of limitations that gives injured people the time period of a certain amount of years after an injury or medical mistake to file a lawsuit. The length of time is determined by state laws and medical malpractice attorneys are subject to a law known as the "discovery rules."

To prevail in a medical malpractice lawsuit, the injured patient has to demonstrate that the negligence of the doctor resulted in specific harm such as physical pain, or loss of income. They must also prove causation, i.e. that the negligent treatment resulted in their injury or death.

Deposition

Depositions are essentially question-and-answer meetings which take place in the presence of a court reporter who is able to record the questions as with the answers. Depositions are a part of the process of discovery in which parties gather information for use in a trial.

Attorneys can ask a series questions to witnesses, mostly doctors. If a doctor is interrogated and questioned, they must answer all questions in a straight and honest manner under oath. Usually, the physician is asked questions by one attorney, and then cross-examined by another attorney. This is an essential stage of the process and requires the complete concentration and attention of the physician.

A deposition is a fantastic method for lawyers to obtain a detailed background of the doctor, including the doctor's education, training and experience. This information is crucial to prove that the doctor did not meet the standard of care you expect and that this breach caused you injury. For example, physicians who have been trained in the area of malpractice cases generally affirm that they have extensive experience in the execution of specific procedures and techniques that may be relevant to a particular medical malpractice attorneys malpractice case.

Trial

Your lawyer will file a complaint with the court, along with a summons. This begins a legal process of disclosure called discovery, where you and your physician's team work together to gather evidence to prove your case. This typically comprises medical records and testimony of an expert witness.

To prove malpractice you must prove that your doctor's actions were below the standard of care. Your lawyer must convince the jury that your injuries could be prevented if the doctor had followed the standard of care. Your doctor's lawyer will present defenses that go against the evidence presented to you by your attorney.

Despite the legend that doctors are a target for frivolous malpractice claims decades of research on the subject shows that jury verdicts tend to reflect reasonable assessments of negligence and damages, and that juries are skeptical of overinflated damages awards. The vast majority malpractice cases are settled prior to trial.