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How to File a Medical Malpractice Lawsuit

Both lawyers and physicians must invest a lot of time and money in many medical malpractice lawsuits (visit the next page). This can include attorney time as well as court fees, expert witness fees and other expenses.

A medical malpractice claim can be filed if a healthcare professional is negligent, has committed misconduct or committed an error or acted in a way that was not. Victims of injury can seek compensation for financial losses, such as past or future medical malpractice attorneys bills and also non-economic injuries, such as discomfort and pain.

Complaint

A medical malpractice law firms malpractice suit has many moving parts and requires a solid evidence to be successful. The injured patient (or their attorney if they've lost their claim) must demonstrate each of the following legal aspects of the claim:

The hospital or doctor was required to act in accordance with the standards of care in force. The defendant erred in his duty. That the breach directly caused injury to the plaintiff. This element is known as "cause". A breach of a duty of care doesn't directly cause injury. It must be shown that it directly caused the injury and was the primary reason for the injury.

It is often required to file a complaint with a medical board in the state in order to protect patients' rights and ensure that the doctor doesn't commit additional errors. A report is not a lawsuit however, it is an effective first step towards beginning the process of bringing a malpractice claim. It is best to consult a Syracuse malpractice attorney prior to filing any report or document.

Summons

A summons or claim is filed in court and sent to the defendant doctor as part of the legal procedure. A court-appointed lawyer for the plaintiff will then look over the documents and, if it appears that there may be an issue with malpractice the lawyer will file a complaint and affidavit before the court describing the medical error that they believe to have committed.

The next step is to gather evidence through pretrial disclosure. This includes the submission of requests for documentation, such as hospital billing and notes from clinics, and taking the deposition of the defendant physician. Attorneys will then inquire with the defendant under oath as to the details of the case.

The attorney representing the plaintiff will use this information to prove the elements of a medical malpractice claim during trial. This includes the existence of a duty on the physician's part to provide care and treatment to patients; the physician's infraction of this duty a causal link between the breach and the patient's injuries or death; and a sufficient amount of damages resulting from the accident or death to justify a monetary award of compensation.

Discovery

During the discovery process, both sides are allowed to seek and receive evidence pertinent to the case. This includes medical records prior to and after an incident of alleged negligence, information regarding experts as well as copies of tax returns or other documents relating to out-of-pocket expenses that the plaintiff claims have been incurred, and the names and contact information of any witnesses who will testify in the trial.

The majority of states have a statute of limitation that permits injured patients a certain number of years after a medical mishap to bring a lawsuit. The length of time is determined by the laws of the state and are subject to a regulation known as the "discovery rules."

In order to win a medical negligence lawsuit, the injured patient must show that the doctor's negligence resulted in specific harm like physical pain or loss of income. They must also prove causation, i.e. that negligence caused their death or injury.

Deposition

Depositions are question-and-answer sessions that take place in the presence a court reporter, who records the questions as well as the answers. The deposition is an element of the process of discovery, which consists of gathering information that can be used in the course of a trial.

Depositions allow attorneys to ask witnesses, often doctors to answer a set of questions. When a physician is deposed to testify, he or she must answer all questions honestly under the oath. Typically, the doctor is initially questioned by an attorney, and then interviewed by another attorney. This is an important stage in the trial, and the physician must focus on it with complete attention.

Depositions allow lawyers to gain a thorough understanding of the doctor's background in terms of his or her education, training and experience. This information is critical to establish that the doctor violated the standard of care in your particular case and that the breach directly caused you injury. For example, physicians who have completed training in the area of malpractice cases generally declare that they have a vast knowledge of certain procedures and techniques that could be relevant to a particular medical malpractice claim.

Trial

Your lawyer will submit a complaint to the court, along with a summons. This initiates the process of legal disclosure, also known as discovery. Your doctor and your staff will work together to gather evidence to support your case. This typically includes medical records as well as expert witness testimony.

The goal of proving negligence is to prove that the actions of your doctor did not meet the standards of care. Your lawyer must convince the jury that your injuries could have been avoided if your doctor had acted in accordance with the standards of care. Your doctor's lawyers will argue defenses that contradict the evidence that your attorney has presented.

Despite the myth that doctors are a target for malpractice claims that are not meritorious, decades of empirical research proves that jury verdicts tend to reflect fair judgments about the extent of negligence and damages and juries are skeptical of excessive damage awards. The vast majority malpractice cases are settled before trial.