How to File a Medical Malpractice Lawsuit

Both lawyers and physicians must invest significant time and money in numerous medical malpractice lawsuits. This investment includes physician hours and work product and attorney time court costs as well as expert witness fees and countless other expenses.

A medical malpractice claim can be filed if a healthcare professional is negligent, has committed misconduct or committed an error or failed to take action. Victims of injury can seek compensation for economic losses, such as future or past medical expenses as well as non-monetary damages, such as discomfort and pain.

Complaint

A medical malpractice case is a complicated one and requires proof of credibility to be successful. The injured person, or their attorney if the patient has died, must show each of these legal elements:

The defendant breached the obligation. The defendant violated this duty. The breach directly caused injury to plaintiff. This is referred to as "cause". A breach of a duty of care will not necessarily cause injury. It must be demonstrated that it caused the injury directly and was the proximate reason for the injury.

It is sometimes necessary to file a complaint to a state medical board to protect the patient's rights and ensure that the doctor doesn't commit any further malpractice. A report is not a lawsuit but it could be a good first step in starting the malpractice claim. It is generally recommended to speak with an Syracuse attorney for malpractice prior to making a report or other type of document.

Summons

As part of the legal process, the summons or claim form is filed with the court and handed to the defendant physician. A court-appointed lawyer for the plaintiff will then go over these documents and, if it is found that there may be a case of malpractice and they file an affidavit and complaint with the court describing the medical error that is claimed to be the cause.

The next step in the legal process is obtaining evidence through pretrial discovery. This involves submitting requests for documentation like hospital billing records or clinic notes, as well as taking the defendant's deposition during which lawyers ask the defendant about his or their knowledge of the matter under the oath.

The attorney representing the plaintiff will use this information to prove the elements of a claim for medical malpractice during trial. The elements of a Medical Malpractice Attorneys malpractice case include the existence of a duty on the part of the doctor to provide medical and treatment to patients, the doctor's failure to fulfill this duty and a causal connection between the breach and the injury or death of the patient and a sufficient amount in damages to warrant a monetary award.

Discovery

During the discovery phase during the discovery phase, both parties are able to request evidence relevant to their case. This includes medical records prior to and after an incident of alleged negligence, information about experts, copies of tax return or other documentation related to expenses out of pocket that the plaintiff claims have been incurred, and the names and contact details of any witnesses who will testify in the trial.

The majority of states have a statute of limitations that limits the time a patient has to seek compensation for injuries caused by a medical mistake. Those time limits are usually set by law in the state, and are subject to a rule known as the "discovery rule."

To prevail in a medical malpractice lawsuit the patient who was injured must prove that a doctor's negligence caused harm to a specific person like physical pain or loss of income. They must also prove causation -- that is, that the negligent treatment was the sole reason for their injury or death.

Deposition

Depositions are questions and answer sessions that take place in the presence of a court reporter who documents both the questions and answers. The deposition is an element of the process of discovery, which consists of gathering information that can be used in the course of a trial.

Depositions allow attorneys to ask witnesses, often doctors to answer a series of questions. When a physician is deposed, he or she must answer the questions truthfully under an oath. Typically, the doctor is first asked questions by an attorney and then cross examined by another attorney. This is an essential stage of the process and requires the complete attention and focus of the physician.

A deposition is an excellent method for lawyers to obtain a detailed background of the doctor, including his or his education, training and experience. This information is essential to prove that the doctor did not meet the standards of care in your case and that the breach resulted in injury. For instance, doctors who have received training in the area of malpractice cases typically will declare that they have a vast experience performing certain procedures and practices that could be relevant to a specific medical malpractice lawyer malpractice claim.

Trial

Your lawyer will make a complaint to the court and issue a summons. This initiates the legal disclosure process known as discovery. You and your doctor's staff will work together to gather evidence to support your case. This usually includes medical records and testimony from an expert witness.

To prove malpractice it is essential to establish that the actions of your doctor were not in accordance with the standards of care. Your lawyer must convince the jury that your injuries could be avoided if your doctor had followed the standards of care. Your doctor's lawyers will argue arguments that are contrary to the evidence presented by your attorney.

Despite the common belief that doctors are the target of frivolous claims of malpractice the decades of evidence shows that jury verdicts are based on reasonable judgments of negligence and damages, and that juries tend to be skeptical of inflated award amounts. The vast majority malpractice cases are settled before trial.