How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits are complex. There are specific guidelines that must be met including a specified time period within which the suit could be filed.

The claimant also has to prove that the doctor's actions led to injuries and losses. This will require hospital and medical documents.

Complaint

After your attorney's investigation has uncovered evidence that malpractice has occurred, he or she will file a formal complaint in court and issue a summons. The complaint will identify the defendants and state the allegations you make against them.

Malpractice claims are founded on the premise that nurses, doctors or other healthcare professionals owe patients the highest standard of care. This is the level of skill and caution the reasonably prudent doctor with similar training would use in similar situations. Your legal team needs to show that your doctor breached this standard, resulting in injuries from which you sustained damages quantifiable.

A physician's standard of care is usually a matter of opinion, and it is often difficult to prove. This is why it's important to hire a law firm that has access to expert witnesses who can testify on the medical field and what reasonable professionals in your situation would have done.

It's not just physicians who commit medical errors, hospital staff members, like nurses and anesthesiologists can be liable for malpractice. This is especially the case for emergency room personnel where mistakes are caused by a hectic atmosphere and overworked workers. Your lawyer may be able to secure testimony from experts in the emergency room who can help demonstrate what should have been done and how the actions of your doctor did not meet the standards.

Discovery

During the discovery phase the attorney will gather and review evidence that may help in proving a malpractice case. This includes medical documents, witness statements expert testimony and more. The legal team on the other side can also have the chance to request this information from you and your attorney. This is done through interrogatories or requests for documents. However, certain materials could be classified as confidential or privy due to privacy laws like HIPAA and its Privacy Rule.

You must also prove your injury is the result of the negligence of the doctor. This is the most challenging aspect of a medical malpractice lawyer case since it requires expert witness testimony that supports your claim.

Your lawyer can also question witnesses that can prove that the doctor was negligent. This could include radiologists, dentists nurses, assistants, nurses and other people who were involved in the treatment of your health. Your lawyer will be adept in preparing strong and persuasive 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 get to the trial stage. This is especially common in medical malpractice cases as the costs involved in the trial process can be high. Once the facts of your case have been established, a settlement may be discussed between you and your insurer of your doctor. If a settlement isn't reached, your case may be heard in court.

Trial

After your attorney completes the initial investigation and concludes that you have a solid malpractice case, they will file the complaint. The complaint will clearly state the allegations and must be handed to the defendant in the summons.

The next phase is discovery. This involves the exchange of medical records as well as depositions of witnesses. Your lawyer will use these statements to prove your doctor's breach of the standard of care. The aim is to demonstrate that the error was caused by the doctor's negligence, and caused damage.

Your medical malpractice attorney will also collaborate with one or more expert witnesses to back your claim. These experts will be given medical records as well as detailed information regarding your case in order to prepare for their deposition and testimony. They can also assist in preparing your case for trial.

As part of the trial preparation your attorney will begin negotiations for settlement with the defense. This process continues throughout the case and may last for years. In this time, it is likely that you will be recovering from your injuries and determining the amount and value of your injuries. If possible, it's beneficial for everyone to avoid litigation and settle outside of court. Your lawyer will carefully weigh the merits of a settlement offer against your present and long-term recovery. If the settlement offer is reasonable the lawyer will be able to convince you to accept it.

Damages

During the discovery phase, plaintiffs will need to prove that their losses are significant and that negligence on the part of the defendant caused these damages. For instance, if the doctor failed to inform the patient that the surgery carried a 30 percent chance of losing a limb and the procedure was done correctly but the patient lost their arm, the medical professional may be held liable for malpractice.

In order to be able to file a valid legal action, the defendant must also show that a competent lawyer could have been able prevent their financial loss or at the very least, reduce its size. This is sometimes referred to as the "but for" test. It is also essential to prove that the plaintiff's expenses to pursue a successful legal claim that is in excess of the amount sought as compensation.

Our medical malpractice lawyers can explain the various forms of damages that can be suffered in a malpractice lawsuit including past, present and future medical expenses as well as lost income, pain and suffering and other economic and non-economic losses. The greater the amount of money awarded, the more serious injury. However, a successful verdict can sometimes be overturned in appeal. Therefore, settling the case outside of court can be an advantageous alternative for some clients. It can save money as well as time on litigation costs. It also eliminates the possibility of a jury ruling on a case based upon emotions instead of facts.