How to File a Medical Malpractice Lawsuit

Lawyers and doctors must invest considerable time and funds in the many lawsuits involving medical malpractice. This includes attorney time court fees as well as expert witness fees and other expenses.

A traumatic injury caused by a healthcare professional's negligence, incompetence, error or omission could result in medical malpractice claims. Victims of injury may seek compensation damages, which could include actual economic losses, such as future and past medical bills as well as non-economic loss such as pain and suffering.

Complaint

A medical malpractice case is complex and requires a solid proof of the claim to be able to prevail. The person who was injured (or their attorney if they've lost their claim) must demonstrate each of the following legal elements of the claim:

That a doctor or hospital was required to act in accordance with the standard of care applicable. The defendant breached this duty. The breach directly caused injury for the plaintiff. This is referred to as "cause". A breach of a standard of care will not directly cause injury. It must be shown that it caused the injury directly and was the primary reason for the injury.

To protect the rights of patients, and to ensure that a doctor does not commit further malpractice, it is necessary to file a report with the state medical malpractice Attorneys board. However, filing a report does not initiate the process of a lawsuit, and is typically just a first step to making the malpractice claim move. It is advisable to speak with an Syracuse malpractice attorney before filing any report or document.

Summons

A summons or claim is filed in court and sent to the doctor who is defendant as part of the legal process. A lawyer for the plaintiff appointed by the court will look over the documents. If it appears there may be a malpractice case the lawyer is required to file an affidavit and complaint with the court, detailing the possible error.

The next step is to obtain evidence through pretrial disclosure. This involves the submission of requests for documentation such as hospital bills and clinic notes, as well as taking depositions of the doctor who is defending the case. Attorneys will then question the defendant under oath as to their knowledge of the case.

The attorney for the plaintiff will use this information to demonstrate the elements of a medical malpractice case at trial. The elements of a medical malpractice claim include the existence of an obligation on the part of the physician to provide medical and treatment to patients, the physician's breach of this duty and a causal link between the breach and injury or death of the patient and the amount of damages to warrant a monetary award.

Discovery

During the discovery process, both sides are able to request and receive evidence relevant to the case. This includes medical records from before and after an incident of negligence, details about experts and tax returns or other documentation relating to out-of pocket expenses that the plaintiff claims have been incurred, and the names and contact information of witnesses who will testify in the trial.

Most states have a statute-of-limitations which limits the amount of time a patient has to pursue a lawsuit after being injured due to an error in medical care. These time limits are typically set by law of the state, and are subject to rules known as the "discovery rule."

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

Deposition

Depositions are question and answer sessions that are conducted in the presence of a court reporter who records both the questions as well as the answers. The deposition is an element of the discovery process in which parties collect information for use in the trial.

Attorneys may ask a series of questions to witnesses, typically doctors. If a doctor is interrogated, they must answer all questions in a straight and honest manner under an oath. Usually, the physician is first interrogated by an attorney and then the attorney is cross-examined by another attorney. This is an important stage of the case and requires the complete concentration and attention of the doctor.

A deposition allows attorneys to gather a full background of the doctor's background in terms of his or the training, education and experience. This information is essential for establish that the doctor violated the standards of care in your particular case and that the breach directly caused you injury. Physicians who have been trained in the area will often be able to prove they have experience with certain techniques and procedures that could be relevant to a specific medical-malpractice case.

Trial

Your lawyer will make a complaint to the court and a summons. This starts a legal disclosure process called discovery. Your doctor and your team will work together to gather evidence to prove your case. The evidence typically includes medical records as well as testimony from an expert witness.

To prove malpractice it is necessary to prove that the actions of your doctor did not meet the standards of care. Your lawyer must convince a jury that it is more likely than not that your injuries would not have occurred if your doctor acted according to the standards of care. Your doctor's lawyer will present defenses that contradict the evidence presented by your lawyer.

Despite the legend that doctors are a target for malpractice claims that are frivolous, decades of research on the subject shows that jury verdicts usually reflect fair judgments about the extent of negligence and damages and that juries are skeptical of overinflated damages awards. The vast majority of malpractice cases settle before trial.