How to File a Medical Malpractice Lawsuit

Bringing a medical malpractice suit against a doctor or hospital requires proof that the defendant acted in breach of his or her duty to patients. This could include hospital and medical documents.

Our attorneys are experienced at deposing witnesses in a professional manner. They may be doctors, other medical professionals who are in private practice or staff at a clinic or hospital.

Negligence

Patients have the right to receive certain standards of care when they visit a hospital, doctor or health care professional. Unfortunately, in some instances these standards are not adhered to or even violated. The results of this breach can be devastating.

When someone suffers injury or death because of a doctor's malpractice, they may file a lawsuit against the medical professional. To establish a case the patient who has been injured must establish four legal elements including breach of duty and causation and damages.

Malpractice is defined as an act or omission by a physician that deviates from the accepted norms of medical practice in the medical field, and results in injury to the patient. It is an aspect of tort law that addresses civil wrongs that are not contraindicated by law or are criminal offenses.

Medical negligence is different from normal negligence in that the injured party has to prove that the doctor was aware, or ought to have known, that their actions were going to cause harm before they are able to claim malpractice. Normal negligence does not. A surgeon who accidentally nicks or cuts one of the nerves or veins during surgery is guilty of negligence but not malpractice attorneys. This is because the surgeon didn't intend to hurt anyone.

In a case of medical malpractice, the defendant has a legal obligation to treat the patient in accordance with the standard of care a reasonably competent healthcare professional with comparable knowledge and experience in similar circumstances would offer. The breach of duty is crucial since it establishes that the alleged negligent conduct caused the injury.

Damages

Damages in a malpractice case are in relation to the losses you sustained due to the negligence of a doctor. This could include financial losses, including future medical expenses, as well as non-economic losses like discomfort and pain.

In order to recover damages, you must prove that the doctor violated a duty of care, that the physician's deviation from the standard of care caused injury, and that the injury was measurable in terms of financial consequences. This is a complicated legal analysis that typically requires expert witness testimony.

Certain of these losses can be identified immediately, for example an error by a doctor caused an infection or other medical issues which required additional treatment. Some damage is more difficult to spot in the event that a doctor misdiagnoses your condition and you do not receive the proper treatment.

If a medical professional's negligence leads to your death then you can sue for the cause of death. You may be able to claim punitive damages in addition to the money you'd get in a lawsuit for survival.

In most states there are limits on the amount you can recover in a malpractice case. These caps vary by state and typically apply to both economic and non-economic damages. Certain states also have rules that limit the length of time you have to wait to bring a lawsuit.

Time Limits

As with any lawsuit there are time limits which must be adhered to, or the case could be thrown out. A malpractice lawsuit should generally be filed between two and six years after the incident occurred. The deadline for filing a malpractice lawsuit varies from state to state.

The time frame can be complicated and it is important to speak with an attorney immediately. The law firm will conduct an investigation to determine if there was a malpractice occurred and if it will be accepted in court. This can take weeks or even months.

Medical malpractice cases have different laws than other types of cases, and typically, the statute of limitations is extended. For example in Pennsylvania the patient must make a claim within two years of the date they were aware of the malpractice, or that a reasonable person would have recognized that the harm existed. This is known as the discovery rule.

In certain states the statutes of limitations begin to expire on the date that the malpractice occurred. This is an issue when the mistake does not immediately cause symptoms. For example, suppose the doctor is negligently leaving a foreign object in the body after surgery. The patient may not be aware of the object until three years after the procedure. In this situation the statute of limitations could have started in the year following the date of surgery, not the moment of identifying the error.

Expert Witnesses

A lot of medical malpractice cases rely on expert witnesses to help present the facts of the case. A plaintiff's expert witness will be able to testify about the doctor's duty of providing medical care to the patient, the medical standards in the region and specialty for that type of physician who has similar qualifications and abilities and the ways in which the defendant's actions were in violation of the standards. The expert will explain the way in which the defendant's actions directly impacted the victim's injury.

The defendant will employ a professional to counter the plaintiff’s expert, and then provide their professional opinion regarding whether the doctor was in compliance with the standards of care. It is common for experts to differ with each other, but the fact finder determines who is the most reliable based on their knowledge and experience.

It is best for the expert to continue working in the medical field because they are more informed about current practice. Judges and jurors typically consider professionals who are practicing more credible than experts whose sole source of income is a testimony in court.

It is also beneficial to choose an expert with expertise in the area of malpractice. A medical expert with experience treating breast cancer, for instance, can provide an argument convincingly as to the reason for an injury. A medical malpractice attorney in Ocala will know what experts to talk to.