How to File a Medical Malpractice Lawsuit
Medical malpractice lawsuits can be very complicated. There are specific guidelines to be followed including a certain time period within which the suit may be filed.
In addition to the need to prove negligence, the plaintiff must also prove that the doctor’s actions caused injuries and losses. This will require medical and hospital documents.
Complaint
When your attorney’s inquiry has uncovered evidence that malpractice occurred, he or she will file a formal complaint in court, along with summons. The complaint identifies the defendants in your case and clearly states the allegations you are making against them.
Malpractice claims are based on the notion that nurses, doctors and other healthcare professionals owe patients the same level of care. This standard is defined as the degree of competence and care that a reasonable medical professional with similar training could exercise in similar situations. Your legal team must to prove that your doctor breached this standard that resulted in injuries due to which you have suffered damages that are quantifiable.
A physician’s standard of care is often a matter of opinion and can be difficult to prove. It is crucial to employ an attorney who has access to experts in the field of medicine to testify on what a reasonable doctor would have done.
It is not just physicians who commit medical mistakes; hospital staff members, like nurses and anesthesiologists are susceptible to making mistakes. This is particularly true of emergency room staff, where errors are usually due to the crazed atmosphere and overworked staff. Your attorney may be able to secure expert testimony from emergency room personnel who can show what could have been done differently and how your doctor failed to meet the standards.
Discovery
During the discovery phase, your attorney will collect and review evidence that could help in proving a malpractice case. This includes medical records, witness statements, as also expert testimony. The legal team of the other side will also have the option to request these documents from you and your attorney. This is done by interrogatories or requests for documents. Certain documents may be considered to be confidential and secret due to privacy laws, such as HIPAA’s Privacy Rule.
You must also prove that your injury is the result of negligence by the doctor. This is the most difficult part of a medical malpractice case because it requires an expert testimony to back your claim.
Your lawyer will also interview witnesses that can prove that the doctor was negligent. This could include nurses, assistants radiologists, dentists, and others who were involved in your care. Your attorney will be skilled in preparing powerful and effective depositions in order to convince these witnesses to admit that the doctor’s negligence was not their fault.
The majority of lawsuits are resolved or settled, before they reach the trial stage. In cases involving medical malpractice this is the most common because the cost of going to trial can be quite expensive. After the facts of your case have been established, a settlement may be negotiated between you and the doctor’s insurance company. If a settlement cannot be reached, your case could go to trial.
Trial
After your attorney has completed the initial investigation and concludes that you have an excellent malpractice lawsuits case, they will file the complaint. The complaint will be clear in its allegations and will be given to the defendant in the summons.
Discovery is the next step. This includes the exchange of medical records as well as depositions from witnesses. Your lawyer will make use of these statements to establish your doctor’s breach of standard of care. The aim is to prove that the error resulted of negligence by the doctor and caused damage.
In addition to the witness’s testimony, your medical malpractice attorney will collaborate with two or more expert witnesses to support your claim. These experts will be given medical records and specific information regarding your case in order to prepare for their testimony and deposition. They can also assist in preparing your case for trial.
As part of the preparation for trial your attorney will begin settlement negotiations with the defense. The process continues throughout the course of the trial and may last for many years. During this time, you will be recovering from your injuries and determining the magnitude and value of your injuries. It is in everyone’s best interests to settle your case outside of court whenever possible. Your attorney will carefully evaluate the merits of a settlement against your current and future recovery. If the settlement is reasonable your lawyer will advise you to accept it.
Damages
During the discovery process the plaintiffs must prove that their losses were significant and that the negligence of the defendant contributed to those damages. If, for example, the doctor failed to inform the patient of the 30 percent possibility that the procedure might result in the loss of a arm, and the operation was perfect but the patient lost an arm and limb, then the medical professional could be held liable for negligence.
In order to have a legitimate malpractice lawsuit, the victim must also show that a competent attorney could have been able to reduce their financial loss, or at a minimum, lessen its size. This is sometimes referred to the “but for test”. In addition, it is important to show that the plaintiff has incurred expenses to pursue a legal claim that are in excess of the amount of compensation sought.
Our medical malpractice lawyers are able to provide an explanation of the different types of damages that could be granted in a malpractice case including past, current and future medical expenses, as in addition to loss of income and pain and discomfort and other non-economic losses. The higher the amount the more serious the damage. However, a successful verdict is sometimes overturned on appeal. Therefore, settling out of court could be a beneficial option for certain clients. It will save money and time in court costs. It also helps avoid the possibility of a jury making a decision based on emotion instead of fact.
