How to File a
Medical Malpractice Lawsuit
Many medical malpractice cases require a lot of time and resources from both physicians and lawyers. This can include physician hours and work product and attorney time court costs as well as expert witness fees and countless other expenses.
A
medical malpractice lawsuits malpractice lawsuit can be filed if a healthcare professional is negligent, has committed misconduct or committed a mistake or acted in a way that was not. Plaintiffs seeking compensation for injuries can file for economic losses, including future or past medical bills as well as non-monetary damages, such as discomfort and pain.
Complaint
A medical malpractice lawsuit is a complex one and requires a solid proof of the claim to be able to prevail. The injured patient (or their attorney if they've passed away) must show each of these legal elements of the claim:
A hospital or doctor had a duty to act in accordance with the applicable standard of care. The defendant violated that duty. The breach directly caused injury to the plaintiff. This element of the malpractice claim is referred to as "causation." A breach of the standard of care itself is not a cause of injury; it must be proven that the breach directly caused the injury and was the direct cause of the injury.
It is typically necessary to file a complaint to a state medical board to protect the rights of the patient and to ensure that the doctor does not engage in further malpractice. A report is not a lawsuit, however, it is an excellent first step in beginning the process of bringing a malpractice claim. It is advisable to speak with an Syracuse malpractice lawyer prior to making any report or other document.
Summons
As part of the legal procedure, a summons or claim form is filed with the court, and then delivered to the defendant doctor. A court-appointed lawyer for the plaintiff will review the documents and, if it is found that there may be a case of malpractice the lawyer will submit a complaint and an affidavit to the court detailing the medical error that they believe to have committed.
The next step in the legal process is to obtain evidence through pretrial discovery. This involves submitting requests to document such as hospital invoices and notes from the clinic, and then conducting a deposition of the doctor who is being sued during which lawyers ask the defendant about his or their knowledge of the matter under oath.
This information will be used by the attorney representing the plaintiff to establish the elements of an action for medical malpractice during trial. The elements of a medical malpractice claim include the existence of an obligation on the part of the doctor to provide treatment and care to patients, the doctor's violation of this duty, a causal link between the breach and injury or death of the patient, and an amount of damages sufficient to warrant a monetary award.
Discovery
During the discovery phase, both parties are allowed to request evidence pertinent to their case. This includes medical records that were taken prior to and after an incident of alleged negligence, information on experts, copies of tax return or other documents related to out-of pocket expenses that the plaintiff claims have been incurred,
medical malpractice and the names and contact information of witnesses who will testify during the trial.
The majority of states have a statute of limitations which limits the amount of time a patient has to pursue a lawsuit after being injured due to a medical mistake. The time limit is usually set by law of the state, and they are subject to rules known as the "discovery rule."
To win a medical malpractice lawsuit, an injured patient has to prove that the doctor's negligence caused specific harm, such as physical pain, or loss of income. They must also prove causation, i.e. that the negligent treatment resulted in their injury or death.
Deposition
Depositions are question and answer sessions that are conducted in front of a court reporter who records both the questions and answers. Depositions are part of the discovery process which is about gathering information that can be used in a trial.
Attorneys may ask a series of questions to witnesses, mostly doctors. When a physician is deposed, he or she must answer all questions honestly under oath. Usually, the physician is initially questioned by an attorney before being interrogated by a different attorney. This is a crucial stage of the process and requires the complete attention and focus of the doctor.
A deposition is a great way for attorneys to obtain details about the doctor, including their education, training, and experience. This information is crucial in proving the doctor breached your standards of care and that this breach caused you injury. For instance, doctors who have received training in the field of malpractice cases will typically affirm that they have extensive experience in the execution of certain procedures and practices that could be relevant to a specific medical malpractice case.
Trial
Your lawyer will submit a complaint to the court, along with a summons. This begins a legal disclosure process called discovery. You and your doctor's team will work together in order to gather evidence that can prove your case. This usually includes medical records and testimony from an expert witness.
The goal of proving malpractice is to establish that your physician's actions fell short of the standard of care. Your lawyer must convince a jury that it is more likely than not your injuries wouldn't have occurred if your doctor acted according to the standard of care. The lawyer representing your doctor will argue defenses which contradict the evidence presented by your lawyer.
Despite the belief that doctors are the target of unsubstantiated claims of malpractice, decades of empirical evidence shows that juries make reasonable assessment of the severity of the damage and negligence and that juries are skeptical of award amounts that are exaggerated. The majority of malpractice cases settle before trial.