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How to File a Medical Malpractice Lawsuit

Both lawyers and physicians must invest considerable time and funds in many medical malpractice lawsuits. This includes attorney time court fees expert witness fees, and other costs.

A medical malpractice lawsuit can be filed when a healthcare professional is negligent or has committed misconduct or committed a mistake or failed to act. The injured party may be able to seek compensation damages, which include economic loss, such as the past and future medical bills as well as non-economic loss such as pain and suffering.

Complaint

A medical malpractice case has many moving parts and requires a solid evidence to win. The injured patient (or their attorney if they've lost their claim) must show each of these legal aspects of the claim:

The defendant violated this duty. The defendant violated this duty. That the breach directly caused injury to the plaintiff. This element is known as "cause". A breach of a standard of care doesn't directly cause injury. It must be shown that it directly caused the injury and was the main reason for the injury.

It is often necessary to file a complaint with a Medical Malpractice Attorneys board in the state in order to protect patients' rights and ensure that the doctor doesn't commit any further negligence. However, filing a complaint is not a way to start a lawsuit and is often just a step towards getting the malpractice case moving. It is usually recommended to speak with an Syracuse attorney for malpractice prior to filing a report or any other type of document.

Summons

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

The next step is obtaining evidence by pretrial disclosure. This involves submitting requests for documentation such as hospital billing information and notes from the clinic, and then taking the deposition of the defendant's physician, where attorneys question the defendant about his or her knowledge of the case under oath.

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

Discovery

During the process of discovery both sides are entitled to request and receive evidence that is relevant to the case. This includes medical records that were taken prior to and after an incident of negligence, information regarding experts and tax returns or other documentation related to expenses out of pocket that the plaintiff claims have been attributable to them, and the names and contact information of witnesses who will be appearing in the trial.

There are many states with a statute of limitations which limits the amount of length of time that a patient is allowed to pursue a lawsuit after being injured due to an error made by a doctor. The length of time is determined by the laws of the state and are subject to a rule called the "discovery rules."

To win a medical malpractice lawsuit, a patient who has been injured must show that the doctor's negligence caused a specific injury like physical pain or loss of income. They must also prove causation -which means, that the negligent treatment was the sole reason for their injuries 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 and the answers. The deposition is an element of the discovery process which involves gathering information that can be used in the course of a trial.

Depositions permit attorneys to ask witnesses, typically doctors to answer a set of questions. If a doctor is deposed to testify, he or she must answer all questions honestly under an oath. Usually, the physician is asked questions by one attorney, and is then cross-examined in the presence of another attorney. This is a crucial phase in the case, and the physician must be attentive to the case.

A deposition is a way for attorneys to gain a thorough understanding of the doctor in terms of his or her education, training and experience. This information is crucial to proving that the physician breached the standards of care in your particular case and that the breach caused you harm. 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 practices that may be relevant to a specific medical malpractice case.

Trial

Your lawyer will submit a complaint to the court and issue a summons. This triggers a legal procedure of disclosure, referred to as discovery where you and your doctor's team collaborate to collect evidence to prove your case. This evidence usually comprises medical records and testimony from an expert witness.

The goal of proving negligence is to prove that your physician's actions were not in line with the standard of care. Your lawyer must convince the jury that your injuries would be prevented if the doctor had followed the standard of care. The lawyers for your doctor will present defenses that contradict the evidence provided by your attorney.

Despite the common belief that doctors are the target of fraudulent malpractice claims years of evidence show that juries make reasonable judgments of negligence and damages, and that juries are skeptical of excessive award amounts. The vast majority of malpractice cases settle prior to trial.