How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits are complex. There are certain guidelines to follow, such as a time limit within which the lawsuit can be filed.

In addition to the need to prove negligence, the plaintiff must show that the doctor's actions led to injuries and losses. This will require medical and hospital documents.

Complaint

If your attorney's probe has revealed evidence that a malpractice has occurred, he or she will file a formal complaint in court, along with summons. The complaint identifies the defendants in your case and clearly states the allegations you're making against them.

Malpractice claims are based on the notion that a doctor, nurse or other healthcare provider owes the patient a standard of treatment. This standard is defined as the level of competence and care that a reasonably prudent medical professional who has similar training would exhibit in similar situations. Your legal team has to show that your doctor violated this standard that resulted in injuries due to which you sustained quantifiable damages.

It can be difficult to prove that a physician's standards are the same as another doctor's. This is why it's crucial to choose a law firm that has access to experts who can provide testimony about the medical field and what reasonable professionals in your doctor's situation would have done.

Not only doctors can make mistakes, but so do hospital staff, including anesthesiologists and nurses. This is especially true of emergency room staff, where mistakes are often attributed to a crowded environment and overworked employees. Your attorney may be able to secure testimony from experts in the emergency department who can help demonstrate what could have been done and why your doctor's actions fell short of this standard.

Discovery

During the discovery process your lawyer will gather and look over evidence that could be used to support a malpractice claim. This includes medical documents, witness statements expert testimony and more. The information could also be requested by the opposing legal team. This is typically done through interrogatories and requests for the production of documents. Certain documents may be considered to be confidential and secret due to privacy laws, such as HIPAA's Privacy Rule.

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

Your lawyer will also interview witnesses that can prove that the doctor was negligent. This can include assistants, nurses radiologists, dentists, and others who were involved in your treatment. Your lawyer will be adept in preparing strong and persuasive depositions in order to convince these witnesses to admit that the doctor was negligent.

Most lawsuits are settled before going to trial. For medical malpractice cases this is the most common due to the fact that going to trial can be expensive. Once the facts are established, you can negotiate a settlement with the insurance company that covers the doctor. If a settlement cannot be reached, your case could proceed to trial.

Trial

Your lawyer will file a lawsuit after having completed the initial investigation. If they determine that you have a convincing case for malpractice, they will file the complaint. It will state clearly your allegations and must be served to the defendant with a summons.

Discovery is the next stage. This involves the exchange of medical records as well as depositions from witnesses. Your lawyer will use these evidence to prove that your doctor violated the standards of care. The goal is to show that the error was the result of the negligence of your doctor, and caused damage.

In addition to the witness statement, your medical malpractice attorney will collaborate with two or more expert witnesses to support your claim. They will be provided with medical records and specific information regarding your case, to prepare for their depositions and testimony. They may also assist in preparing your case for trial.

As part of the preparation for trial the attorney will initiate settlement negotiations with the defense. This process could last for many years. In this time, it is likely that you will be recovering from your injuries and determining the amount and value of your injuries. If you can, it is beneficial for everyone to avoid litigation and settle outside of court. Your attorney will carefully evaluate the merits of a settlement offer against your present and long-term recovery. If the settlement offers are reasonable your lawyer will advise you to accept it.

Damages

During the discovery phase, plaintiffs will need to prove that their losses are significant and that the negligence of the defendant caused these damages. For instance, if a doctor did not inform the patient that a surgical procedure carried a 30 percent chance of losing a limb and the surgery was performed perfectly but the patient lost their arm in the process, the medical professional could be held accountable for negligence.

A victim could also prove that a competent lawyer could have averted or reduced the financial loss. This is sometimes called the "but for test". It is also necessary to prove that the plaintiff has paid for expenses to pursue a legal claim, that is greater than the amount they seek in compensation.

Our medical malpractice lawyers can provide an explanation of the different types of damages that may be granted in a malpractice attorneys case including past, current and future medical expenses, as also loss of income, pain and discomfort, and other non-economic loss. The higher the amount the more serious the injury. However, a verdict that is deemed to be a success may be rescinded on appeal. Settlements that are not in court may be beneficial to some clients. It can help save time and money on court costs, as well being able to avoid the potential risk of having a jury judge a case on the basis of emotions instead of facts.