How to File a Medical Malpractice Lawsuit
Many medical malpractice attorneys malpractice lawsuits require a lot of time and resources from both doctors and attorneys. This investment covers physician time and work product and attorney time court costs as well as expert witness fees and countless other expenses.
An injury caused by the negligence of a healthcare professional’s incompetence, error or omission can give rise to a medical malpractice claim. Injury victims may seek compensatory damages, which could include actual economic losses 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 prevail. The injured patient or their lawyer should the patient die, must be able to prove each of these elements:
That a doctor or hospital had a responsibility to perform its duties in accordance with the standards of care in force. The defendant did not fulfill that obligation. The breach directly caused injury to the plaintiff. This element of a malpractice claim is called “causation.” A breach of the standard of care itself doesn’t cause injury, but it must be proved that the breach directly caused the injury and was the proximate cause of the injury.
It is usually required to file a complaint to a state medical board in order to protect patients’ rights and ensure that the doctor doesn’t commit any further malpractice. But, filing a report is not a way to start the process of a lawsuit, and is typically just a beginning step in making the malpractice claim move. It is recommended to talk with an Syracuse malpractice attorney prior to filing any report or other document.
Summons
As part of the legal process an order or claim form is filed with the court and then handed to the defendant doctor. A lawyer appointed by the court on behalf of the plaintiff will then review these documents and, if it is found that there is an issue with malpractice and they file a complaint and affidavit before the court describing the medical error that they believe to have committed.
The next step is to obtain evidence by pretrial disclosure. This involves submitting requests for evidence such as hospital invoices as well as notes from clinics and taking the deposition of the defendant’s physician during which lawyers ask the defendant about his or their knowledge of the matter under the oath.
The attorney for the plaintiff will use this information to demonstrate the elements of a claim for medical malpractice at trial. This includes the existence of a duty on the physician’s part to provide treatment and treatment to patients; the doctor’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 death or injury to justly award monetary compensation.
Discovery
During the discovery phase during the discovery phase, both parties are able to request evidence pertinent to their case. This includes medical records prior to and following 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 they incurred, and also the names and contact information of any witnesses who are scheduled to testify at trial.
Most states have a statute of limitation that gives injured people the time period of a certain amount of years after an injury or medical mistake to bring a lawsuit. Those time limits are usually set by law in the state, and they are subject to rules called the “discovery rule.”
To prevail in a medical malpractice lawsuit, a patient who has been injured must demonstrate that the negligence of the doctor caused specific harm, like physical pain or loss of income. They must also prove causation i.e. that the negligent treatment caused their injury or death.
Deposition
Depositions are question and answer sessions that are conducted in front of an official court reporter who records both the questions as well as the answers. Depositions are part of the discovery process, in which parties collect information for use in the trial.
Depositions permit attorneys to ask witnesses, typically doctors, a series of questions. When a doctor is questioned, they must answer all questions in a straight and honest manner under the oath. Usually, the physician is questioned questions by one attorney, and then cross-examined by a different attorney. This is an important stage of the case that requires the full attention and focus of the physician.
A deposition can help attorneys gain a thorough understanding of the doctor in terms of his or the training, education and experience. This information is crucial for convincing the court that the doctor did not adhere to your standards of care and resulted in injury to you. Physicians who have been trained in the area will often be able to prove they have experience with certain techniques and procedures that may be relevant to an individual medical malpractice case.
Trial
A civil court is officially initiated when your lawyer lodges a complaint and a summons with the court of your choice. This begins the process of legal disclosure, also known as discovery. You and your doctor’s team will work together to collect evidence to support your case. The evidence usually consists of medical records and testimony from experts.
The purpose of proving malpractice is to establish that the actions of your doctor were not in line with the standard of care. Your lawyer must convince the jury that your injuries would be avoided if your doctor had acted in accordance with the standard of care. The attorneys for your doctor will present arguments that do not agree with the evidence presented by your lawyer.
Despite folklore suggesting that doctors are targets for frivolous malpractice claims decades of empirical research shows that jury verdicts typically reflect reasonable evaluations of damages and negligence, and that juries are skeptical of excessive damage awards. The vast majority malpractice cases are settled prior to trial.
