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How to File a Medical Malpractice Lawsuit

Many medical malpractice attorneys malpractice lawsuits require significant time and resources from both doctors and lawyers. This investment covers physician time and work product, attorney time, court costs and expert witness fees and countless other expenses.

An injury caused by medical professional's negligence, mistake, or omission could result in a medical malpractice claim. Victims of injury may seek compensation damages, which include economic losses such as past and future medical bills, as well as non-economic losses such as pain and suffering.

Complaint

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

That a hospital or doctor had a responsibility to act according to the standards of care in force. The defendant did not fulfill that obligation. The breach directly caused injury to plaintiff. This element of the malpractice claim is referred to as "causation." A breach of the standard of care does not cause an injury, but it must be proven that the breach directly caused the injury and was the main reason for the injury.

It is often necessary to file a claim to a state medical board to protect the patient's rights and ensure that the doctor doesn't commit further malpractice. A report is not a lawsuit but it could be the first step to getting the malpractice claim started. It is often best to speak with a Syracuse attorney for malpractice prior to making a report or other document.

Summons

A summons or claim is filed in the court and is sent to the defendant doctor as part of the legal procedure. A court-appointed lawyer for the plaintiff will then look over the documents and, if it is found that there is an issue with 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 is to gather evidence by pretrial disclosure. This involves submitting documents such as hospital billing information or clinic notes, as well as taking the defendant's deposition, where attorneys question the defendant about his or their knowledge of the matter under oath.

The information provided will be used by the lawyer for the plaintiff to establish the elements of a claim for medical negligence at trial. The elements of a medical malpractice case include the existence of a duty on the part of the doctor to provide medical and treatment to patients, the physician's breach of this duty and a causal connection between the breach and the injury or death of the patient, and an amount of damages sufficient to warrant a monetary award.

Discovery

During the process of discovery, each side is entitled to ask for and receive evidence that is relevant to the case. This includes medical records from prior to and after an incident of negligence, information on experts and tax returns or other documents related to out-of pocket expenses that the plaintiff claims to have caused, and the names and contact details of any witnesses who are expected to testify at trial.

Most states have a statute-of limitations that limits the amount of time a patient can sue after being injured by medical error. These limitations are set by state laws and are subject to a rule known as the "discovery rules."

To prevail in a medical malpractice attorneys malpractice claim the injured person must prove that a physician's negligence caused harm to a specific person for example, physical pain or loss of income. They must also prove causationmeaning, that the negligent treatment was the sole reason for their injury or death.

Deposition

Depositions are questions-and-answer sessions that take place in presence of a court reporter who will record the questions as with the answers. The deposition is a part of the discovery process in which parties gather information for use in the trial.

Attorneys may ask a series of questions to witnesses, which are usually doctors. When a physician is questioned, he or she must answer all questions honestly under an oath. Typically, the doctor is asked questions by one attorney and later cross-examined by a second attorney. This is an essential stage of the trial and requires the full attention and focus of the physician.

Depositions allow lawyers to get a complete background on the doctor in terms of his or the training, education and experience. This information is essential to showing that the doctor violated your standard of care and that this breach caused you injury. For instance, doctors who have been trained in the field of malpractice cases will typically be able to prove that they have a lot of experience performing certain procedures and methods that may be relevant to a particular medical malpractice case.

Trial

A lawsuit in a civil court is officially initiated when your lawyer lodges a complaint and a summons with the appropriate court. This starts the legal disclosure process known as discovery. You and your doctor's team will work together to gather evidence to prove your case. The evidence usually consists of medical records as well as testimony from experts.

To prove malpractice you must prove that the doctor's actions were not in accordance with the standards of care. Your lawyer must convince a jury that it is more likely than not your injuries would not have occurred had your doctor followed the standard of care. The lawyer for your doctor will present defenses which contradict the evidence presented to you by your lawyer.

Despite the belief that doctors are a target for frivolous malpractice claims, decades of empirical research shows that jury verdicts usually reflect reasonable evaluations of damages and negligence, and juries are skeptical of excessive damage awards. The majority of malpractice cases settle before trial.