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How to File a Medical Malpractice Lawsuit

Both lawyers and physicians must invest considerable time and funds in a variety of medical malpractice lawsuits. This can include physician hours and work product and attorney time court costs as well as expert witness fees and countless other expenses.

A medical malpractice lawsuit can be filed in the event that a healthcare professional was negligent or has acted in a manner that is illegal or erred, or failed to take action. Injury victims may seek compensatory damages, including the actual economic loss such as future and past medical malpractice lawyer bills as well as non-economic expenses like pain and suffering.

Complaint

A medical malpractice law firms malpractice case is a complicated one and requires evidence of credibility for success. The person who was injured (or their attorney if they've died) must be able to prove each of the following legal aspects of the claim:

A hospital or doctor was required to act in accordance with the applicable standard of care. The defendant failed to meet this duty. The breach directly caused injury to 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 directly caused the injury and was the primary cause for the injury.

To protect the rights of a patient, and to ensure that a physician doesn't commit any further malpractice, it is necessary to file a report with the state Medical Malpractice Attorney board. However, filing a report does not initiate an action and is usually only a first step in getting the malpractice claim moving. It is recommended to consult with an Syracuse lawyer for malpractice before making a report or other type of document.

Summons

As part of the legal procedure, a summons or claim forms is filed with the court, and then delivered to the defendant physician. A plaintiff's lawyer appointed by the court will go through these documents. If it appears there is a malpractice issue, the lawyer will file an affidavit as well as a complaint with the court, describing the possible error.

The next step in the legal process is to obtain evidence through pretrial discovery. This involves making requests for evidence like hospital billing and notes from clinics, and taking the deposition of the defendant's doctor. Attorneys then will question the defendant under oath as to his or her knowledge regarding the case.

The lawyer for the plaintiff will utilize this information to establish the elements of a medical negligence claim in court. The elements of a medical malpractice case include the existence of a duty on the part of the physician to provide treatment and care to patients, the doctor'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 compensation award.

Discovery

During the discovery process, both sides are entitled to request and receive evidence that is relevant to the case. This includes medical records before and after the alleged malpractice, information about experts and tax returns or other documents relating to out-of-pocket expenses which the plaintiff claims were incurred, as well as the names and contact information for any witnesses who appear at trial.

There are many states with a statute of limitations that limit the time a patient has to seek compensation for injuries caused by an error made by a doctor. The length of time is determined by state laws and are subject to a regulation known as the "discovery rules."

To win a medical malpractice claim the injured person must prove that the doctor's negligence caused a specific harm, such as physical pain or loss of income. They must also prove causation -- that is, that the negligent treatment was the sole reason for their injury or death.

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 a part of the discovery procedure, which consists of gathering information that can be used in a trial.

Attorneys may ask a series of questions to witnesses, typically doctors. If a doctor is interrogated and asked to answer questions truthfully under the oath. Typically, the doctor is first interrogated by an attorney and later cross examined by another attorney. This is a crucial step in the case and the physician must focus on it with complete attention.

A deposition is a way for attorneys to gather a full background of the doctor's background, including his or their education, training and experience. This information is crucial for proving the doctor breached the standard of care you expect and that this breach caused injury. Physicians who have been trained in this area are likely to affirm that they have years of experience in performing certain techniques and procedures that may be relevant to your particular medical-malpractice case.

Trial

A civil court is formally launched when your lawyer files a complaint and summons with the court of your choice. This is the beginning of a legal disclosure process called discovery. You and your doctor's team will work together to gather evidence to support your case. This usually comprises medical records and expert witness testimony.

To prove that you committed a crime, you must establish that the actions of your doctor were below the standard of care. Your lawyer must convince a jury that it is more likely than not that your injuries could not have occurred had your doctor acted according to the standard of care. The lawyer representing your doctor will argue defenses that contradict the evidence presented to you by your lawyer.

Despite the legend that doctors are a target for malpractice claims that are not meritorious, years of empirical research has shown that jury verdicts tend to reflect reasonable evaluations of damages and negligence and juries are skeptical of overinflated damages awards. The vast majority of malpractice cases settle before trial.