How to File a Medical Malpractice Lawsuit

Medical malpractice attorneys lawsuits can be very complicated. There are specific guidelines to be followed, which include the time frame within which a lawsuit can be filed.

In addition to showing negligence, the claimant must show that the doctor’s actions resulted in injuries and losses. This will require hospital and medical documents.

Complaint

After your attorney’s investigation has revealed evidence that a malpractice has occurred, he or she will file a complaint with the court, along with a summons. The complaint identifies the defendants in the case and outlines the allegations you’re making against them.

Malpractice claims are based on the notion that a doctor or nurse or any other healthcare provider owes a patient a certain standard of care. This is the amount of competence and prudence that reasonable doctors with the same training would employ in similar situations. Your legal team must demonstrate that your doctor did not adhere to this standard and resulted in you suffering quantifiable damages.

It can be a challenge to prove that a doctor’s standard is the same as another doctor’s. This is why it’s important to work with a legal firm that has access to expert witnesses who can provide testimony about the medical field and what an experienced professional in the same situation as your doctor would have done.

Not only doctors make mistakes, but so do hospital staff, such as anesthesiologists and nurses. This is particularly true for emergency room staff where mistakes are caused by a busy atmosphere and overworked personnel. Your attorney might be able to secure testimony from experts in the emergency room who can provide evidence of what could have been done and how your doctor’s actions fell short of this standard.

Discovery

During the discovery process during the discovery phase, your attorney will collect and look over evidence that could be used to prove a malpractice claim. This includes medical records, witness statements expert testimony, and more. The legal team representing the other side will also have the opportunity to obtain this information from you and your attorney. This is usually done through interrogatories and requests for production of documents. Certain materials could be protected and private due to privacy laws, like HIPAA’s Privacy Rule.

You must also prove that your injury is due to negligence by the doctor. This is the most challenging aspect of a medical negligence claim because it requires expert witness testimony that proves your claim.

Your lawyer will also call witnesses who can prove the negligence of the doctor. This could include assistants, nurses, radiologists, dentists and others who were involved in your treatment. Your lawyer will be adept at taking strong and effective depositions to get these witnesses to admit that the doctor’s negligence was not their fault.

Most lawsuits are resolved, or settled, before they get to the trial stage. For medical malpractice cases it is a common practice because the cost of going to trial can be expensive. Once the facts of your case have been established, a settlement could be reached between you and the insurance company for the doctor. If a settlement isn’t possible your case will proceed to trial.

Trial

Your attorney will file a lawsuit after conducting the initial investigation. If they decide that you have a compelling case of malpractice, they will file the complaint. This will clearly state the allegations and will be given to the defendant with the summons.

The next stage is discovery. This involves the exchange of medical records as well as depositions of witnesses. Your lawyer will make use of these statements to establish your doctor’s breach of the standard of care. The objective is to prove that the error resulted of the doctor’s negligence and caused damages.

Apart from the witness’s statement Your medical malpractice lawyer will also work with two or three expert witnesses to back up your claim. These experts will receive medical records as well as detailed information regarding your case, to prepare for their depositions and testimony. They can also assist in preparing your case for trial.

As part of the trial preparation, your attorney will begin settlement negotiations with the defense. This process continues throughout the trial and can take up to years. During this time, you’ll be recovering from your injuries while determining the magnitude and value of your injuries. If possible, it’s beneficial for everyone to avoid litigation and settle out of court. Your attorney will carefully weigh the advantages of a settlement offer against your current and long-term recovery. If the settlement offer is reasonable then your lawyer will be able to convince you to accept it.

Damages

During the discovery phase, plaintiffs will need to show that their losses are significant and that negligence on the part of the defendant contributed to these damages. If, for example, the doctor did not inform the patient of the 30 percent likelihood that the procedure will result in the loss of a leg, and the surgery was perfect but the patient lost a limb in the process, then the medical professional could be held responsible for malpractice.

A victim can also prove that a competent lawyer could have prevented or reduced their financial loss. This is commonly referred to as the “but for” test. It is also important to show that the plaintiff incurred costs in the pursuit of a legal claim which are in excess of the amount demanded as compensation.

Our medical malpractice lawyers can explain the various types of damages that may be sustained in a malpractice attorneys lawsuit including the past, present and future medical expenses loss of income, pain and suffering and other economic and non-economic losses. The more serious the injury, the higher the amount of compensation. However, a ruling that is successful is sometimes overturned upon appeal. Settlements that are not in court may be beneficial to some clients. It can save money as well as time on court costs. It also helps avoid the possibility of a jury deciding a case based on emotion rather than fact.

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