How to File a Medical Malpractice Lawsuit
Bringing a medical malpractice suit against a doctor or hospital must prove that the defendant breached his or her obligation to patients. This evidence may include medical and hospital records.
Our lawyers are skilled at taking depositions that are effective for witnesses. They could be doctors or other medical professionals working in private practice, or even staff members at a clinic or hospital.
Negligence
Patients have the right to be treated with respect to certain standards when they visit a hospital, doctor or health professional. Unfortunately, these standards are not always met or even complied with. The consequences of this breach can be devastating.
A lawsuit can be brought against a medical professional when an injured patient suffers a death due to the negligence of that doctor. To establish a case, the person who was injured must prove four legal elements: duty, breach, damages and causation.
Malpractice is defined as an act or omission by medical professionals that is contrary to the accepted norms of medicine within the medical profession, and inflicts harm on the patient. It is a subset of tort law that deals with civil wrongs that are not contractual duties or criminal offenses.
Medical negligence differs from normal negligence in that the person who is injured must demonstrate that the doctor was aware, or should have known that their actions were going to cause harm before they are able to claim malpractice. Normal negligence does not. For example an surgeon who accidentally creates a cut on a vein or nerve during surgery could be found guilty of negligence but not malpractice since the doctor didn't intend to cause harm.
In the case of medical negligence the defendant's responsibility is to treat the patient in line with the standard of care that a reasonably knowledgeable health professional with similar experience and qualifications would provide in similar circumstances. The violation of this obligation is a crucial element because it demonstrates that the alleged negligence caused the injury.
Damages
The damages in a malpractice case are based on the losses you have suffered as a result of the negligence of a physician. This could include financial losses, such as future medical expenses, as well as non-economic damages such as discomfort and pain.
To be able to claim damages, you need to demonstrate that a doctor did not fulfill the law and that his violation of the standard of care resulted in injury, and the injury had quantifiable financial consequences. This is a complicated legal analysis that usually requires expert witness testimony.
Some of these losses are obvious like when your doctor made an error that resulted in an illness or
malpractice other medical issue, and you needed additional treatment due to the result. Other damages are less readily obvious, for instance if your doctor misdiagnoses you, and you are not able to receive the right treatment.
You can sue wrongful death in the event that your doctor's negligence results in your death. You can claim punitive damages in addition the compensation you'd receive in a survival suit.
In most states, there is a limit to the amount you can get in a malpractice case. These caps vary from state to state, and are typically applicable to both financial and other damages. Certain states also have rules that restrict the length of time you have to wait to file a lawsuit.
Time Limits
As with any lawsuit there are time limits which must be adhered to or the case could be barred. A malpractice lawsuit should generally be filed between two and six years after the incident occurred. The deadline varies according to state.
The time frame can be complicated, so it is vital to consult a lawyer immediately. The law firm will investigate to determine if there was a mistake and if the case will be heard in the court. This phase can last for up to a few weeks or even months.
Medical malpractice cases have different laws than other types of cases, and typically, the statute of limitations is changed. For instance in Pennsylvania the patient has to make a claim within two years from the date they were aware of the
malpractice, or when a reasonable individual would have known that the harm existed. This is referred to as the discovery rule.
In certain states the statutes of limitation begin to expire on the date when the
malpractice attorneys occurred. This is problematic if the medical mistake does not trigger any immediate symptoms. Imagine, for instance that a doctor negligently left a foreign body inside the patient's body after surgery. The patient may not realize the foreign object until three or more years after surgery. In this case, the statutes of limitations could have been in the year following the date of surgery, not the moment of discovery.
Expert Witnesses
Expert witnesses are often called upon to clarify the facts in medical malpractice cases. An expert witness for a plaintiff will provide testimony regarding the doctor's duty of taking care of the patient and the medical standards for the region and specialty for this type of doctor who has similar qualifications and abilities and the manner in which the defendant's actions were in violation of those standards. The expert will explain how the deviance directly led to the patient's injury.
The defendant will employ an expert to counter the plaintiff's expert, and offer their professional opinion about whether the doctor met the standard of care. It is common for the experts to disagree with one with respect to their opinions, but the fact finder determines who is the most trustworthy on their expertise and experience.
It is preferential for the expert to still be working in the medical field because they will have better knowledge of current practices. Judges and jurors often find practicing professionals more credible than experts whose only source of income is a testimony in court.
It is also preferable to hire an expert witness that is specialized in the area of the
malpractice lawsuits. A medical professional with experience treating breast cancer, for instance, can present a an argument that is convincing as to the reason for an injury. A medical malpractice lawyer in Ocala will know which expert witnesses to consult.