How to File a Medical Malpractice Lawsuit

Both physicians and lawyers must invest considerable time and funds in numerous medical malpractice lawsuits. This investment covers physician time and work product and attorney time, court costs and expert witness fees and countless other expenses.

An injury caused by a healthcare professional's negligence, misconduct, error or omission can result in medical malpractice claims. The injured party can seek compensation for economic losses, including future or past medical bills, as well as noneconomic injuries, such as pain and discomfort.

Complaint

A medical malpractice lawsuit is a complex one and requires credible proof for success. The injured person or their attorney, in the event that the patient has passed away, must prove each of these legal elements:

That a hospital or doctor was bound to act in accordance with the applicable standard of care. The defendant erred in his obligation. That the breach directly caused injury to the plaintiff. This is referred to as "cause". A breach of a duty of care does not cause injury on its own. It must be proven that it directly caused the injury and was the primary cause for the injury.

To ensure a patient's rights, and to ensure that a doctor is not committing further mistakes, it is essential to file a claim with the state Medical Malpractice Attorneys board. A report is not a lawsuit but it can be the first step to initiating the malpractice lawsuit. It is usually recommended to consult an Syracuse attorney for malpractice prior to filing a report or any other document.

Summons

As part of the legal process the summons or claim form is filed with the court and then handed to the doctor who is the defendant. A lawyer for the plaintiff appointed by the court will examine these documents. If it appears that there may be a malpractice case, the lawyer will file an affidavit, along with a complaint to the court, describing the alleged error.

The next step is to obtain evidence through pretrial disclosure. This involves submitting requests for evidence such as hospital invoices and clinic notes and taking the defendant's deposition in which attorneys ask the defendant on his or their knowledge of the matter under the oath.

The information provided will be used by the lawyer for the plaintiff to establish the elements of a claim for medical malpractice lawyer negligence in court. The elements of a medical malpractice case include the existence of an obligation on the part of the doctor to provide care and treatments to patients, the physician's infraction of this obligation, a causal link between the breach and the injury or death of the patient and an amount of damages sufficient to warrant a monetary award.

Discovery

During the process of discovery, each side is entitled to ask for and receive evidence that is relevant to the case. This includes medical records before and after the alleged malpractice, information about expert witnesses, copies of tax returns or other documentation related to expenses out of pocket that the plaintiff claims were incurred, along with the names and contact information for any witnesses who will testify at trial.

The majority of states have a statute of limitations that permits injured patients the time period of a certain amount of years after a medical mishap to bring a lawsuit. Those time limits are usually determined by the law of the state and are subject to rules called the "discovery rule."

To prevail in a medical malpractice case, an injured patient must show that a doctor's negligence caused specific harm like physical pain or loss of income. They must also prove causation -which means that the negligent treatment was the sole reason for their injury or death.

Deposition

Depositions are questions-and-answer sessions that take place in presence of a court reporter who will record the questions as in the responses. The deposition is a part of the discovery process which involves gathering information that can be used in the course of a trial.

Depositions permit attorneys to ask witnesses, usually doctors, a series of questions. When a doctor is deposed and questioned, they must answer all questions truthfully under the oath. Typically, the doctor is asked questions by one attorney and later cross-examined by a second attorney. This is a crucial phase in the case and the physician must be attentive to the case.

A deposition allows attorneys to gain a thorough understanding of the doctor's background in terms of his or the training, education and experience. This information is critical to prove that the doctor did not meet the standards of care in your case and that the breach directly caused injury to you. For instance, doctors who have received training in the area of malpractice cases typically will declare that they have a vast experience in the execution of certain procedures and practices that may be relevant to a particular medical malpractice case.

Trial

Your lawyer will make a complaint to the court, along with a summons. This starts a legal disclosure process called discovery. Your doctor and your staff will work together to gather evidence to support your case. The evidence typically comprises medical records and testimony of an expert witness.

The purpose of proving malpractice is to prove that the actions of your doctor did not meet the standards of care. Your lawyer must convince jurors that it is more likely than not your injuries would not have occurred if your doctor acted according to the standards of care. The lawyer representing your doctor will argue defenses which contradict the evidence presented to you by your attorney.

Despite the legend that doctors are targets for frivolous malpractice claims decades of empirical research shows that jury verdicts typically reflect fair assessment of damages and negligence and that juries are skeptical of overinflated damages awards. The majority of malpractice cases settle prior to trial.