How to File a Medical Malpractice Lawsuit
Lawyers and doctors must spend a significant amount of time and money in many
medical malpractice lawsuits. This includes doctor hours and work product, attorney time, court costs as well as expert witness fees and many other costs.
A
medical malpractice claim can be filed when a healthcare professional is negligent or has acted in a manner that is illegal or committed an error or failed to take action. Plaintiffs seeking compensation for their injuries can seek damages, including the actual economic loss, such as the past and future medical bills as well as non-economic losses such as pain and suffering.
Complaint
A medical malpractice lawsuit has many moving parts, and requires evidence that is credible evidence to win. The patient who has been injured (or their attorney if they have died) must be able to prove each of the following legal aspects of the claim:
The defendant breached the duty. The defendant did not fulfill that obligation. The breach directly caused injury for the plaintiff. This is referred to as "cause". A breach of a standard of care doesn't necessarily cause injury. It must be proven that it caused the injury directly and was the primary reason for the injury.
It is usually necessary to file a claim to a state medical board in order to safeguard the rights of the patient and to ensure that the doctor doesn't engage in further errors. However, filing a claim does not start a lawsuit and is often just a beginning step in getting the malpractice claim moving. It is usually recommended to speak with a Syracuse malpractice lawyer prior to filing a report or other document.
Summons
A summons or claim is filed in a courtroom and sent to the doctor who is defendant 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 may be a case of malpractice the lawyer will submit a complaint and an affidavit with the court describing the alleged medical error.
The next step is to obtain evidence by pretrial disclosure. This involves submitting requests for documentation such as hospital billing information and notes from the clinic, and then taking the deposition of the defendant's physician, where attorneys question the defendant about his or his knowledge of the situation under oath.
The lawyer for the plaintiff will utilize this evidence to prove the elements of a claim for medical malpractice at trial. The elements of a medical malpractice claim include the existence of an obligation on the part of the physician to provide care and treatments to patients, the physician's breach of this duty, a causal link between the breach and injury or death of the patient and the amount of damages to warrant a monetary compensation award.
Discovery
During the discovery phase in the discovery phase, both parties are entitled to request evidence relevant to their case. This includes medical records prior to and after the incident of alleged malpractice, information about experts and tax returns or other documentation related to out-of-pocket expenses which the plaintiff claims to have incurred, as well as the names and contact details for any witnesses who will appear at trial.
Most states have a statute of limitation that gives injured people an amount of time after a
medical malpractice attorney error to bring a lawsuit. The time limit is usually determined by the law of the state and are subject to rules called the "discovery rule."
In order to win a medical negligence case the injured person must prove that a doctor's negligence caused a specific injury like physical pain or loss of income. They must also prove causation, i.e. that the negligent treatment led to their death or injury.
Deposition
Depositions are essentially question-and-answer meetings that take place in presence a court reporter, who is able to record the questions as with the answers. The deposition is a part of the discovery process through which the parties collect evidence to be used in the trial.
Depositions allow attorneys to question witnesses, often doctors to answer a series of questions. If a doctor is deposed, he or she must answer all questions honestly under an oath. Usually, the physician is first interrogated by an attorney before being interrogated by a different attorney. This is a crucial stage in the case and the physician has to pay attention to it with all their heart.
A deposition is an excellent opportunity for lawyers to gather an extensive background on the doctor, including his or the doctor's education, training and experience. This information is crucial to proving the doctor breached your standards of care and that this breach caused you injury. For example, physicians who have received training in the field of malpractice cases usually testify that they have vast experience performing specific procedures and techniques that may be relevant to a specific medical-malpractice claim.
Trial
Your lawyer will submit a complaint to the court and will issue a summons. This triggers a legal procedure of disclosure known as discovery where you and your physician's team collaborate to collect evidence to support your case. This typically includes medical records and testimony from an expert witness.
The purpose of proving malpractice is to prove that the actions of your doctor did not meet the standard of care. Your lawyer must convince the jury that your injuries could have been prevented if your doctor had followed the standards of care. The attorneys for your doctor will present defenses that go against the evidence provided by your attorney.
Despite the myth that doctors are targets for frivolous malpractice claims, years of empirical research has shown that jury verdicts usually reflect fair assessments of negligence and damages, and that juries are skeptical of inflated damage awards. The majority of malpractice cases are settled prior to trial.