How to File a Medical
Malpractice LawsuitMedical malpractice lawsuits can be very complicated. There are certain guidelines to be followed with a specific time frame in which the suit can be filed.
The claimant must also prove that the doctor's actions led to injuries and losses. This will require hospital and medical documents.
Complaint
When your attorney's inquiry has revealed evidence that a malpractice occurred, he or she will file a complaint in court along with a summons. The complaint will identify the defendants and state the allegations you have made against them.
Malpractice claims are founded on the notion that nurses, doctors and other healthcare professionals owe patients the same level of care. This standard is defined as the amount of care and skill that a reasonably prudent medical professional who has similar training would apply in similar circumstances. Your legal team has to show that your doctor did not meet this standard and caused injuries to which you suffered quantifiable damages.
The standard of care a physician provides 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 field of medicine to provide proof of what a reasonable professional would have done.
Not only doctors make mistakes, but also hospital staff, including nurses and anesthesiologists. This is especially true for emergency room staff where mistakes are frequently made due to a busy atmosphere and
malpractice attorney overworked workers. Your lawyer may be able to secure testimony from experts in the emergency department who can provide evidence of what should have been done and how the actions of your doctor did not 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 includes medical records, witness statements, expert testimony and more. The information may also be requested by the opposing legal team. This is done by interrogatories or requests for documents. Certain documents could be classified as confidential or privileged because of privacy laws such as HIPAA and its Privacy Rule.
You must also prove your injury is due to the doctor's negligence. This is the most challenging part of a medical malpractice claim because it requires expert witness testimony that supports your claim.
Your lawyer will also interview witnesses who can prove the doctor's negligence. This could include radiologists dentists as well as nurses, assistants as well as other individuals who were involved in the care of your health. Your lawyer is skilled in preparing powerful and effective depositions to get these witnesses to admit that the doctor's negligence was not their fault.
The majority of lawsuits are resolved or settled, before they get to the trial stage. This is especially true in medical malpractice cases because the cost of trial can be high. Once the facts of your case are established, a settlement may be negotiated between you and the insurer of your doctor. If a settlement isn't reached, the case may be heard in court.
Trial
After your attorney has completed the initial investigation and determines you have a solid malpractice case, they will file the complaint. The complaint will be clear in its allegations and must be served on the defendant, along with a summons.
Discovery is the next step. The next phase involves discovery. This includes depositions and exchange of witnesses. Your lawyer will make use of these statements to establish your doctor's breach of the standard of care. The goal is to show that the error was caused by the negligence of the doctor and resulted in damages.
In addition to the witness's testimony, your medical
malpractice attorney will work with one or two experts to support your claim. These experts will receive medical records as well as detailed information regarding your case in order to prepare for their testimony and deposition. They may also help prepare your case for trial.
As part of the preparation for trial your lawyer will start settlement negotiations with the defense. This process continues throughout the trial and can sometimes last for several years. During this time period, you are recovering from your injuries and determining the magnitude of your damages. When possible, it's the best option for everyone to avoid litigation and settle outside of court. Your attorney will carefully evaluate the merits of a settlement offer against your current and long-term recovery. If the settlement offer is reasonable and fair, then your lawyer will be able to convince you to accept it.
Damages
During the discovery process the plaintiffs must prove that their losses were significant and that the negligence of the defendant was a factor in those damages. If, for example, the doctor failed to inform the patient of the 30% chance that the procedure could result in the loss of limb, and the surgery was perfect but the patient lost a limb, then the medical professional could be held accountable for malpractice.
A victim may also demonstrate that a competent lawyer could have prevented or minimized the financial loss. This is sometimes referred to the "but for test". It is also required to show that the plaintiff has paid for expenses to pursue a legal claim, which is more than the amount sought in compensation.
Our medical malpractice lawyers are able to explain the various types of damages that can be granted in a malpractice case, including past, current and future medical expenses as also lost income as well as pain and discomfort and other non-economic losses. Generally, the more serious the injury, the more the amount of compensation. However, a decision that is successful is sometimes overturned upon appeal. Settlements outside of court may be beneficial to some clients. It will save money and time in court costs. It also helps avoid the risk of a juror choosing a case based on emotions rather than facts.