How to File a Medical Malpractice Lawsuit

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

In addition to the need to prove negligence, the plaintiff must show that the actions of the doctor resulted in losses and injuries. This will require medical and hospital records.

Complaint

Your lawyer will make a court complaint and summons when he/she has discovered evidence of malpractice. The complaint will identify the defendants in your case, and clearly outlines the allegations you're making against them.

The basis for malpractice claims is the idea that a doctor or nurse or other healthcare provider owes the patient a certain standard of care. This is the amount of competence and prudence that reasonable doctors with the same training would employ in similar situations. Your legal team must show that your doctor violated this standard and caused you to suffer quantifiable harm.

The standard of care for a doctor is often a matter of opinion and is difficult to prove. It is essential to find an attorney who has access to experts in the medical field to provide proof of what a professional of reasonable standards would have done.

It is not just physicians who commit medical mistakes; hospital staff members, like nurses and anesthesiologists may be guilty of malpractice. This is especially true for emergency room staff, where errors are usually due to a chaotic environment and overworked staff. Your lawyer may be in a position to obtain expert testimony from emergency room staff who can explain what should have happened and why your doctor was unable to meet this standard.

Discovery

During the discovery phase the attorney will gather and review evidence that could help in proving a malpractice case. This includes medical records, witness statements as also expert testimony. These records can be requested by the opposing legal team. This usually happens through interrogatories and requests for production of documents. Certain materials are considered to be privileged and secret due to privacy laws, like HIPAA's Privacy Rule.

You must also prove your injury was the result of a negligent doctor. This is the most difficult element of a medical negligence case because it requires an expert evidence to support your claim.

Your lawyer will also interview any witnesses that can support the doctor's negligent actions. This can include radiologists, dentists, nurses, assistants and other personnel who were involved in the care of your health. Your lawyer will know how to conduct powerful and effective depositions in order to get witnesses to admitting that the doctor was negligent.

Most lawsuits are settled, or settled before they reach the trial stage. This is particularly common for medical malpractice cases, since the costs of a trial can be very high. Once the facts are established and you have a chance to negotiate an agreement with the doctor's insurer. If a settlement isn't feasible your case will proceed to trial.

Trial

Your attorney will file a complaint following conducting the initial investigation. If they determine that you have a compelling case for malpractice, they will file the complaint. This will clearly state the allegations and must be delivered to the defendant in a summons.

The next stage is discovery. The next phase is discovery. This includes the exchange and deposition of witnesses. The lawyer will use the evidence to prove that your doctor violated the standards of care. The objective is to establish that the error was a result of negligence by the doctor and resulted in damages.

Your medical malpractice lawyer will also work with one or more expert witnesses in support of your claim. These experts will receive medical records and details about your case to prepare for their deposition and testify. They can also assist in preparing your case for trial.

As part of the trial preparation the attorney will initiate negotiations for settlement with the defense. This process could last for several years. In this time, you are recovering from your injuries and determining the severity of your damages. It is in everyone's best interests to settle outside of court and avoid litigation whenever feasible. Your attorney will carefully evaluate the merits of a settlement against your present and long-term recovery. If the settlement offers are reasonable your lawyer will convince you to accept it.

Damages

During the discovery process plaintiffs must demonstrate 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 likelihood that the procedure will result in the loss of a leg, and the procedure was perfect but the patient lost an arm and limb, then the medical professional could be held responsible for malpractice.

In order to be able to file a valid malpractice lawsuit, the person who is suing must prove that a competent lawyer could have been able avoid financial loss or at least minimize the size. This is sometimes referred to the "but for test". It is also necessary to show that the plaintiff incurred costs in pursuit a successful legal claim, that is more than the amount sought in compensation.

Our medical malpractice lawyers are able to explain the various forms of damages that may be sustained in a malpractice lawsuit including past, present and future medical expenses and lost income, as well as pain and suffering and other non-economic losses. In general, the more serious the injury, higher the award. A decision that is found to be a success could be rescinded by appeal. Settlements outside of court could be beneficial for certain clients. It can save time and money in litigation fees, as well as avoiding the possibility of having a jury decide cases on the basis of emotion rather than fact.