How to File a Medical
Malpractice LawsuitMedical malpractice lawsuits are complex. There are specific guidelines to follow, such as the time frame within which the lawsuit may be filed.
The claimant also has to prove that the doctor's actions resulted in injuries and losses. This will require hospital and medical documents.
Complaint
Your lawyer will file a court complaint and summons once he or she has discovered evidence of negligence. The complaint will identify the defendants and state the allegations against them.
Malpractice claims are based on the idea that a doctor or nurse or other healthcare professional owes a patient a standard of care. This is defined as the amount of care and skill that a reasonable medical professional who has similar training could exercise in similar situations. Your legal team must prove that your doctor did not adhere to this standard and resulted in you suffering quantifiable damage.
A physician's standard of care is often an issue of opinion and is often difficult to prove. This is why it's essential to select a law firm that has access to expert witnesses who can testify about the medical field and what reasonable professionals in your doctor's position would have done.
It's not just doctors who make mistakes, but so can hospital staff, such as nurses and anesthesiologists. This is especially true of emergency room staff, whose mistakes are often attributed to the crazed atmosphere and overworked staff. Your lawyer may be able to get testimony from experts in the emergency department who can explain the correct procedure and how your doctor's actions fell short of this standard.
Discovery
During the discovery phase your lawyer will gather and look over evidence that might support a malpractice claim. This includes medical records, witness statements expert testimony, and more. The other side's legal team may also be able to obtain this information from you and your attorney. This is accomplished through interrogatories or requests for documents. Certain materials could be protected and secret due to privacy laws, like HIPAA's Privacy Rule.
It is also necessary to prove that your injury was caused by the doctor's negligence. This is the most difficult part of a medical malpractice case as it requires expert witness testimony to support your claim.
Your lawyer will also call witnesses who can prove that the doctor was negligent. This can include nurses, assistants, radiologists, dentists and other personnel who were involved in your treatment. Your lawyer will know how to take effective and powerful depositions to ensure that these witnesses admitting that the doctor was negligent.
Most lawsuits are settled prior to trial. This is especially common in medical malpractice cases as the costs of a trial can be extremely expensive. Once the facts of your case are established, a settlement may be agreed upon between you and the insurance company of the doctor. If a settlement isn't feasible the case will proceed to trial.
Trial
After your attorney completes the initial investigation and determines you have an excellent malpractice case, they will file the complaint. The complaint will be clear in its allegations and must be handed to the defendant in a summons.
The next phase is discovery. This includes the exchange of medical records and depositions of witnesses. Your lawyer will make use of these documents to prove your doctor's violation of the standard of care. The objective is to prove that the error resulted of negligence on the part of the doctor and caused damages.
Your medical malpractice lawyer will also work with one or more expert witnesses to back your claim. They will be provided with medical records and all the details about your case to prepare for their deposition and testify. They can also assist in preparing your case for trial.
As part of the preparation for trial your attorney will begin settlement negotiations with the defense. The process continues throughout the course of the trial and may last for years. During this time, you will be recovering from your injuries and determining the magnitude and value of your injuries. If you can, it is in everyone's best interest to avoid litigation and settle outside of court. Your attorney will carefully assess the merits of any settlement offer with your current and future settlement. If the settlement is reasonable your lawyer will advise you to accept it.
Damages
During the discovery phase, plaintiffs will need to prove that their losses are significant and that the negligence of the defendant has contributed to these damages. If,
malpractice for instance, the doctor failed to inform the patient of the 30% likelihood that the procedure will result in the loss of arm, and the operation was successful, but the patient lost a limb or limb, the doctor could be held responsible for negligence.
To have a viable legal action, the defendant must prove that a competent lawyer could have been able prevent their financial loss or at a minimum, lessen the size. It is sometimes referred to the "but for test". It is also necessary to prove that the plaintiff has incurred costs in pursuing a successful legal claim, which is more than the amount sought in compensation.
Our medical
malpractice lawyers can explain the various kinds of damages that can be granted in a malpractice case including past, current and future medical expenses, as also loss of income as well as pain and discomfort and other non-economic losses. Generally, the more serious the injury, the more the award. A successful verdict may be challenged by an appeal. Settlements outside of court could be advantageous for some clients. It can save money as well as time on court costs. It also reduces the risk of having a jury making a decision based on emotion rather than fact.