How to File a Medical
Malpractice LawsuitMedical malpractice lawsuits can be very complicated. There are certain guidelines that must be met including a time limit within which the suit could be filed.
The claimant must also demonstrate that the actions of the doctor caused injuries and losses. This will require medical and hospital documents.
Complaint
When your attorney's inquiry has revealed evidence that a malpractice has occurred, he or she will file a lawsuit in court along with a summons. The complaint will identify the defendants and make the allegations you bring against them.
Malpractice claims are based on the belief that a physician or nurse or any other healthcare provider owes a patient a certain standard of care. This is defined as the degree of competence and care that a reasonably prudent medical professional with similar training would exercise in similar circumstances. Your legal team must to show that your doctor did not meet this standard and
malpractice lawsuit caused injuries to which you sustained damages quantifiable.
It can be difficult to prove that a doctor's standards are the same as another doctor's. It is crucial to choose an attorney who has access to experts in the medical field to testify on what a reasonable professional would have done.
It's not just physicians who make medical errors; hospital staff members, such as nurses and anesthesiologists, also are susceptible to making mistakes. This is particularly true of emergency room personnel, where mistakes are often made due to the crazed atmosphere and overworked workers. Your attorney may be able to obtain testimony from experts in the emergency department who can help demonstrate the proper procedure and why your doctor's actions did not meet this standard.
Discovery
During the discovery phase, your attorney will gather and look over evidence that could be used to prove a malpractice claim. This includes medical records and witness statements, as well as expert testimony. The information may also be requested by the opposing legal team. This is typically done through inquiries and requests for production of documents. However, certain materials could be classified as confidential or privileged due to privacy laws, such as HIPAA and its Privacy Rule.
You must also prove that your injury is due to negligence by the doctor. This is the most difficult part of a medical malpractice case, as it requires expert evidence to support your claim.
Your lawyer will also call witnesses that can prove that the doctor was negligent. This could include assistants, nurses, radiologists, dentists and others who were involved in your care. Your lawyer will be proficient in taking effective and convincing depositions to convince these witnesses to admit that the doctor was negligent.
The majority of lawsuits are settled before they go to trial. In cases involving medical malpractice, this is especially common due to the fact that going to trial can be expensive. After the facts of your case are established, a settlement can be reached between you and the insurance company of the doctor. If a settlement cannot be reached, your case may go to trial.
Trial
Your lawyer will file a formal complaint after completing the initial investigation. If they decide that you have a compelling case for malpractice, then they will file it. The complaint will clearly state the allegations and be sent to the defendant with the summons.
The next stage is discovery. This involves the exchange of medical records as well as depositions from witnesses. Your lawyer will make use of these statements to prove your doctor's breach of the standard of care. The objective is to prove that the error was a result from the negligence of the doctor that caused damages.
In addition to the witness statement, your medical malpractice attorney will also work with two or three expert witnesses to support your claim. These experts will receive medical records and specific information regarding your case in order to prepare for their deposition and testimony. They may also assist in preparing your case for trial.
Your lawyer will initiate talks with the defense as part of the trial preparation. The process continues throughout the course of the trial and can last for many years. In this time, you are recovering from your injuries and determining the severity of your injuries. It is in everyone's best interests to settle out of court and avoid litigation whenever possible. Your attorney will carefully compare the merits of any settlement offer with your current and future settlement. If the settlement offer seems reasonable, then your lawyer will advise you to accept it.
Damages
During the discovery phase, plaintiffs will need to show that their losses are significant and that the negligence of the defendant has caused these damages. If, for example, the doctor did not inform the patient of the 30% chance that the procedure could result in the loss of a limb, and the surgery was perfect, but the patient lost an arm and limb, then the medical professional could be held responsible for negligence.
To have a viable
malpractice lawsuit, the person who is suing must also show that a competent lawyer could have been able stop their financial loss or at least minimize its size. This is commonly referred as the "but for" test. It is also important to prove that the plaintiff has incurred expenses to pursue a legal claim, which are greater than the amount sought in compensation.
Our medical malpractice lawyers can explain the various kinds of damages awarded in a case of malpractice including past, current and
malpractice lawsuit future medical expenses as also lost income as well as pain and discomfort and other economic or non-economic losses. The higher the award the more serious the damage. However, a ruling that is successful is sometimes overturned on appeal. So, settling outside of court can be a beneficial alternative for some clients. It can help save time and money on costs for litigation, as well as avoid the potential risk of having a jury judge a case on the basis of emotions instead of fact.