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How to File a Medical Malpractice Lawsuit

Both lawyers and doctors have to invest a lot of time and money in the many lawsuits involving medical malpractice. This investment covers physician time and work product and attorney time, court costs, expert witness fees, and many other costs.

A medical malpractice case can be filed when a healthcare professional is negligent or has committed misconduct or erred, or failed to act. Injury victims may seek compensatory damages, including actual economic losses, such as past and future medical bills, as well as noneconomic loss such as pain and suffering.

Complaint

A medical malpractice case is a complicated one and requires proof of credibility to be successful. The injured person, or their attorney when the patient has passed away must be able to prove each of these elements:

The defendant breached that duty. The defendant violated that obligation. That the breach directly caused injury to the plaintiff. This element of the malpractice claim is referred to as "causation." A breach of the standard of care itself does not cause injury; it must be proved that the breach directly caused the injury and was the proximate cause of the injury.

To ensure the rights of a patient, and to ensure that a doctor does not commit further mistakes, it is essential to file a complaint with the state medical malpractice attorneys board. But, filing a report does not start the process of a lawsuit, and is typically just a step towards getting the malpractice claim moving. It is best to consult a Syracuse malpractice attorney prior to making any report or other document.

Summons

As part of the legal procedure, a summons or claim forms is filed with the court and then handed to the defendant physician. A lawyer for the plaintiff appointed by the court will examine these documents. If it appears there could be a malpractice claim, the lawyer will file an affidavit and complaint with the court, detailing the claimed mistake.

The next step in the legal process is obtaining evidence through pretrial discovery. This includes submitting requests for documentation, such as hospital billing or clinic notes, and taking the deposition of the defendant physician. Attorneys then will question the defendant under oath as to his or her knowledge regarding the case.

The information provided will be used by the attorney representing the plaintiff to prove the elements of a medical malpractice claim during trial. The elements of a medical malpractice claim include the existence of a duty on the part of the doctor to provide treatment and care to patients, the doctor's infraction of this obligation and a causal link between the breach and the injury or death of the patient and the amount of damages to warrant a monetary award.

Discovery

During the discovery phase, both parties are allowed to request evidence pertinent to their case. This includes medical Malpractice law firms records before and after the alleged malpractice, information about expert witnesses, copies of tax returns or other documentation related to the out-of-pocket expenses that the plaintiff claims were incurred, along with the names and contact information for any witnesses who will testify at trial.

Most states have a statute of limitations that allows injured patients only a certain number of years after a medical mishap to make a claim. The time limit is usually determined by the law of the state and are subject to a rule known as the "discovery rule."

In order to win a medical negligence case an injured victim must prove that a physician's negligence caused harm to a specific person, such as physical pain or loss of income. They must also prove causation, i.e. that negligence caused their death or injury.

Deposition

Depositions are question-and-answer sessions that take place in the presence of a court reporter who records both the questions and responses. The deposition is an element of the discovery process, in which the parties gather information to use in a trial.

Attorneys are able to ask a series of questions to witnesses, mostly doctors. If a physician is interrogated to testify, he or she must answer all questions honestly under oath. Typically, the doctor is asked questions by an attorney and then cross-examined by a different attorney. This is an important stage in the trial and the doctor must give it their full attention.

A deposition is a great opportunity for lawyers to gather a detailed background of the doctor, including his or his education, training and experience. This information is essential for establish that the doctor violated the standards of care in your situation and that the breach directly caused you harm. For example, physicians who have received training in the field of malpractice cases will typically be able to prove that they have a lot of experience in the execution of certain procedures and practices that may be relevant to a specific medical malpractice case.

Trial

A lawsuit in a civil court is officially initiated when your lawyer files a complaint and summons with the court of your choice. This triggers a legal procedure of disclosure called discovery, where you and your doctor's team work together to gather information to prove your case. This typically comprises medical records and testimony from an expert witness.

The goal of proving negligence is to establish that the actions of your doctor did not meet the standards of care. Your lawyer must convince the jury that your injuries would have been prevented if your doctor had followed the standards of care. The attorneys for your doctor will present arguments that do not agree with the evidence provided by your attorney.

Despite the common belief that doctors are targets for unsubstantiated claims of malpractice years of evidence demonstrate that jury verdicts reflect fair assessments of damages and negligence and that juries are skeptical of excessive award amounts. The vast majority malpractice cases are settled before trial.