How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits can be very complicated. There are specific guidelines to follow, for example a deadline within which a lawsuit can be filed.

The claimant must also prove that the actions of the doctor caused injuries and losses. This will require medical and hospital documents.

Complaint

If your attorney's probe has found evidence that fraud occurred, he or she will file a formal complaint in court, along with a summons. The complaint names the defendants in your case and outlines the allegations that you are making against them.

Malpractice claims are based upon the belief that doctors, nurses or other healthcare professionals owe patients the highest standard of care. This is the level of expertise and prudence an appropriately prudent doctor with similar training would employ in similar situations. Your legal team must show that your doctor violated this standard and caused you to suffer quantifiable damages.

It can be a challenge to prove that a physician's standards are comparable to another doctor's. This is why it is crucial to choose a law firm with access to expert witnesses who can give testimony on the medical field and what reasonable professionals in the same situation as your doctor would have done.

Not only doctors make mistakes, but also hospital personnel, such as anesthesiologists and nurses. This is especially true of emergency room staff, whose mistakes are often attributed to the crazed atmosphere and overworked workers. Your attorney may be able to secure testimony from experts in the emergency department that can assist in proving the correct procedure and how the actions of your doctor did not meet this standard.

Discovery

During the discovery phase your lawyer will gather and look over evidence that might be used to support a malpractice claim. This includes medical records and witness statements, as well as expert testimony. The legal team of the other side will also have the opportunity to obtain this information from you and your attorney. This is accomplished through interrogatories or requests for documents. Certain documents may be considered to be confidential and private due to privacy laws, for instance HIPAA's Privacy Rule.

You must also prove your injury is due to the doctor's negligence. This is the most difficult part of a case involving medical negligence because it requires an expert evidence to support your claim.

Your lawyer will also depose witnesses who can demonstrate the doctor's negligent actions. This could include nurses, assistants radiologists, dentists, and other personnel who were involved in your care. Your lawyer will know how to take powerful and effective depositions in order to get these witnesses admit that the doctor was negligent.

The majority of lawsuits are resolved or settled before they reach the trial stage. This is particularly true in medical malpractice law firms cases since the costs associated with trial can be expensive. After the facts of your case have been established, a settlement could be agreed upon between you and the insurance company for the doctor. If a settlement is not agreed upon, your case will be heard in court.

Trial

Your lawyer will file a lawsuit after conducting the initial investigation. If they decide that you have a compelling case for malpractice, then they will file the complaint. It will state clearly your allegations and be served to the defendant along with a summons.

The next phase involves discovery. This includes the exchange of medical records and depositions from witnesses. Your lawyer will make use of these statements to prove your doctor's breach of standard of care. The objective is to establish that the error was a result from the negligence of the doctor that resulted in damages.

Aside from the witness statement, your medical malpractice attorney will work with a couple of experts to support your claim. These experts will receive medical records and details regarding your case, to prepare for their deposition and testimony. They may also help in making your case ready for trial.

Your lawyer will begin talks with the defense as part of the preparation for trial. This process is ongoing throughout the trial and can take up to many years. During this time, you will be recovering from your injuries while determining the amount and value of your losses. If you can, it is in everyone's best interest to avoid litigation and settle out of court. Your attorney will carefully evaluate the merits of a settlement offer against your current and future recovery. If the settlement proposal is reasonable and fair, then your lawyer will encourage to accept it.

Damages

During the discovery phase, plaintiffs have to prove that their losses are significant and that negligence on the part of the defendant has caused these damages. For example, if the doctor failed to inform the patient that a surgical procedure carried a 30 percent chance of losing a limb and the surgery was performed perfectly but the patient lost their arm in the process, the medical professional could be held liable for malpractice.

A victim may also show that a competent lawyer could have prevented or reduced the financial loss. This is often referred to as the "but for" test. It is also required to prove that the plaintiff incurred costs in pursuit a successful legal claim, which is greater than the amount they seek in compensation.

Our medical malpractice lawyers can explain the various kinds of damages that could be given in a malpractice lawsuit which include past, present and future medical expenses as well as loss of income, pain and discomfort, and other economic or non-economic losses. In general, the more serious the injury, the higher the amount of compensation. A ruling that is deemed to be successful can be overturned through an appeal. Settlements outside of court may be advantageous for some clients. It will save time and money on costs for litigation, as well being able to avoid the potential risk of having a jury judge a case based on the basis of emotion instead of facts.