How to File a Medical Malpractice Lawsuit

Medical malpractice attorneys lawsuits can be very complicated. There are specific guidelines to be adhered to including a time limit during which the suit can be filed.

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

Complaint

Once your attorney's investigation has revealed evidence that a malpractice occurred, he or she will file a formal complaint in court and Malpractice lawsuit issue summons. The complaint identifies the defendants in your case and clearly states the allegations you're making against them.

The basis for malpractice claims is the notion that a doctor, nurse or other healthcare professional owes a patient a minimum standard of care. This is defined as the amount of skill and caution that a reasonably prudent medical professional trained similarly would exercise in similar circumstances. Your legal team must prove that your doctor did not adhere to this standard and caused you to suffer quantifiable injury.

The standard of care for a doctor is often an issue of opinion and is often difficult to prove. It is crucial to employ an attorney who has access to experts in the medical field to testify about what a professional of reasonable standards would have done.

It's not just doctors who commit medical mistakes; hospital staff members, like nurses and anesthesiologists, also can commit malpractice. This is particularly the case for emergency room personnel where mistakes are often made due to a busy environment and overworked employees. Your attorney may be able to obtain expert testimony from emergency room staff who can show the circumstances that led to the incident and why your doctor was unable to meet this standard.

Discovery

During the discovery phase the attorney will collect and examine evidence that may be used to support a malpractice claim. This could include medical records, witness statements, as and expert testimony. The legal team representing the other side will also have the opportunity to request these documents from you and your attorney. This is typically done through interrogatories and requests for the production of documents. However, certain documents may be privileged or confidential due to privacy laws, such as HIPAA and its Privacy Rule.

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

Your lawyer can also question witnesses to prove that the doctor was negligent. This can include assistants, nurses, radiologists, dentists and others who were involved in your treatment. Your lawyer is skilled in preparing strong and persuasive depositions to convince these witnesses to admit that the doctor was negligent.

Most lawsuits are resolved, or settled, before they reach the trial stage. In medical malpractice cases it is a common practice since the cost of going to trial can be quite expensive. Once the facts are established you can negotiate a settlement with the insurance company of the doctor. If no settlement can be reached, the case may go to trial.

Trial

When your lawyer has completed the initial investigation and decides you have a strong malpractice case they will file the complaint. The complaint will clearly state the allegations and be sent to the defendant with a summons.

The next stage is discovery. The next phase involves discovery. This includes depositions and exchange of witnesses. Your lawyer will use these evidence to show that your doctor did not follow the standard of care. The aim is to demonstrate that the error was caused by the negligence of your doctor, and resulted in damages.

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

Your lawyer will initiate talks with the defense as part of the preparation for trial. This process continues throughout the trial, and can take up to years. During this time, you'll be recovering from your injuries while determining the size and amount of your damages. When you can, it's in everyone’s best interest to avoid litigation and settle out of court. Your attorney will carefully assess the merits of any settlement with your current and potential recovery. If the settlement offers are reasonable, your lawyer will encourage you to accept it.

Damages

During the discovery phase, plaintiffs have to prove that their losses are significant and that the negligence of the defendant has contributed to these losses. For instance, if a doctor failed to inform the patient that a surgical procedure carried a 30 percent chance of losing a limb. If the procedure was carried out perfectly but the patient lost their arm in the process, the medical professional could be held accountable for negligence.

A victim may also show that a skilled lawyer could have prevented or minimized the financial loss. This is sometimes called the "but for test". It is also required to show that the plaintiff has incurred expenses in pursuing a successful legal claim that is higher than the amount demanded in compensation.

Our medical malpractice lawyers are able to explain the various forms of damages that could be caused by a malpractice lawsuit including future, present and past medical expenses loss of income, suffering and pain and suffering, as well as other non-economic losses. The greater the amount of money awarded the more serious the damage. However, a successful verdict may be rescinded upon appeal. Settlements outside of court may be beneficial for a few clients. It could save money and time on court costs. It also reduces the risk of a juror deciding a case based on emotions rather than facts.