How to File a Medical Malpractice Lawsuit
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An injury resulting from the negligence of a healthcare professional’s mistakes, or error could result in a medical malpractice claim. Plaintiffs seeking compensation for their injuries can seek damages, including actual economic loss such as future and past medical bills as well as non-economic losses such as pain and suffering.
Complaint
A medical malpractice lawsuit is made up of many moving parts and requires a solid evidence to win. The injured party (or their attorney if they have died) must demonstrate each of the following legal aspects of the claim:
The defendant breached that obligation. The defendant violated this duty. That the breach directly caused injury to the plaintiff. This aspect of an action for malpractice is called “causation.” A breach of the standard of care itself is not a cause of injury, but it must be proven that the breach directly caused the injury and was the proximate reason for the injury.
It is usually necessary to file a complaint with a state medical board in order to protect the patient’s rights and ensure that the doctor does not commit additional errors. However, filing a complaint does not start an action and is usually just a step towards getting the malpractice claim moving. It is recommended to talk with an Syracuse malpractice attorney before filing any report or other document.
Summons
A summons or claim is filed in a courtroom and sent to the defendant doctor as part of the legal process. A lawyer appointed by the court for the plaintiff will then look over the documents and, if it appears that there may be an issue with malpractice, they will submit a complaint and an affidavit with the court, describing the medical error that they believe to have committed.
The next step is obtaining evidence through pretrial disclosure. This involves submitting requests for evidence like hospital billing records as well as notes from clinics and taking the defendant’s deposition during which lawyers ask the defendant about his or her knowledge of the case under the oath.
The attorney for the plaintiff will use this evidence to prove the elements of a medical malpractice claim at trial. The elements of a medical malpractice claim include the existence of an obligation on the part of the doctor to provide medical and treatment to patients, the doctor’s violation of this duty and a causal connection 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, each side is entitled to request and receive evidence relevant to the case. This includes medical records before and after the alleged malpractice, information about experts as well as copies of tax returns or other documents relating to out-of-pocket expenses the plaintiff claims to have incurred, and also the names and contact details of any witnesses who are scheduled to appear at trial.
Most states have a statute-of limitations that limit the length of time that a patient is allowed to sue after being injured by an error made by a doctor. Those time limits are usually determined by the law of the state and are subject to a rule known as the “discovery rule.”
In order to win a medical malpractice case an injured victim must prove that the doctor’s negligence caused a specific injury like physical pain or loss of income. They must also prove causationwhich means, that the negligent treatment was the sole reason for their injury or death.
Deposition
Depositions are questions and answer sessions that are conducted in front of the court reporter who takes notes of both the questions and the responses. The deposition is a part of the process of discovery, which is about gathering information that can be used in a trial.
Depositions allow attorneys to ask witnesses, typically doctors, a series of questions. When a physician is deposed to testify, he or she must answer each question truthfully under an oath. Typically, the doctor is first interrogated by an attorney and later the attorney is cross-examined by another attorney. This is an essential stage of the case and requires the full attention and focus of the doctor.
A deposition is a way for attorneys to gather a full background of the doctor in terms of his or the training, education and experience. This information is essential to prove that the doctor did not meet the standard of care in your situation and that the breach directly resulted in injury. Physicians who have received training in this area are likely to declare that they have experience with certain procedures and techniques that could be relevant to an individual medical-malpractice case.
Trial
Your lawyer will file a complaint with the court and issue a summons. This initiates a legal process of disclosure, also known as discovery, where you and the doctor’s team collaborate to collect evidence to support your case. The evidence typically comprises medical records and expert witness testimony.
The objective of proving that you have committed a malpractice is to prove that your doctor’s actions fell short of the standard of care. Your lawyer must convince jurors that it is more likely than not your injuries wouldn’t have occurred if your doctor followed the standards of care. The lawyers for your doctor will present arguments that do not agree with the evidence presented by your lawyer.
Despite the belief that doctors are a target for frivolous malpractice claims, decades of research on the subject shows that jury verdicts usually reflect reasonable evaluations of damages and negligence and that juries are skeptical about excessive damage awards. The vast majority of malpractice cases settle prior to trial.