How to File a Medical Malpractice Lawsuit
Medical malpractice lawsuits are complex. There are specific guidelines to follow, for example the time frame within which a lawsuit can be filed.
In addition to proving negligence, the person seeking compensation must show that the doctor's actions led to injuries and losses. This will require medical and hospital records.
Complaint
Once your attorney's investigation has found evidence that fraud has occurred, he or she will file a formal complaint in court along with a summons. The complaint will identify the defendants, and then state the allegations you bring against them.
Malpractice claims are based on the belief that a physician or healthcare provider owes the patient a standard of care. This is defined as the amount of skill and caution that a reasonably prudent medical professional with similar training would exercise in similar circumstances. Your legal team has to prove that your doctor violated this standard and resulted in you suffering quantifiable injury.
It isn't easy to prove that a physician's standards are the same as another doctor's. This is why it is important to work with a legal firm with access to expert witnesses who can testify about the medical field and what reasonable professionals in your situation would have done.
It's not just doctors who make mistakes in their medical practice; hospital staff members, like nurses and anesthesiologists, also can be liable for malpractice. This is particularly true of emergency room personnel, where mistakes are often made due to the crazed atmosphere and overworked workers. Your lawyer could be in a position to secure an expert witness from the emergency room staff who can explain the circumstances that led to the incident and how your doctor failed to meet the standard.
Discovery
In the discovery phase, your attorney will collect and review evidence that may help in proving a malpractice case. This includes medical documents, witness statements expert testimony, and more. The information could be requested by the legal team opposing the case. This can be done via interrogatories or requests for documents. However, certain materials may be classified as confidential or privy due to privacy laws such as HIPAA and its Privacy Rule.
You must also prove your injury is the result of the negligence of your doctor. This is the most difficult aspect of a medical
malpractice attorneys claim because it requires expert witness testimony that proves your claim.
Your lawyer will also call witnesses who can prove that the doctor was negligent. This can include assistants, nurses radiologists, dentists, and others who were involved in your care. Your lawyer is skilled in taking effective and convincing depositions in order to convince these witnesses to admit that the doctor was negligent.
Most lawsuits are resolved, or settled, prior to reaching the trial stage. This is especially common in medical malpractice cases since the costs involved in a trial can be very high. After the facts of your case are established, a settlement may be reached between you and the insurance company of the doctor. If a settlement cannot be reached the case will go to trial.
Trial
When your lawyer has completed the initial investigation and decides you have a strong malpractice case they will file the complaint. It will state clearly your allegations and must be served to the defendant along with a summons.
Discovery is the next step. The next phase involves discovery. This includes the exchange and depositions of witnesses. Your lawyer will use these statements to prove that the doctor violated the standard of care. The aim is to prove that the error was the result from the negligence of the doctor that caused damage.
In addition to the witness statement, your medical
malpractice attorney will work with two or three expert witnesses to prove your claim. These experts will be given medical records and detailed information about your case to prepare for their testimony and deposition. They may also help in making your case ready for trial.
As part of the preparation for trial the attorney will initiate settlement negotiations with the defense. This process could last for several years. During this period, you'll be recovering from your injuries and determining the amount and value of your damages. When possible, it's in everyone’s best interest to avoid litigation and settle outside of court. Your attorney will carefully evaluate the merits of a settlement against your current and future recovery. If the settlement offers are reasonable your lawyer will advise you to accept it.
Damages
During the process of discovery, plaintiffs must show that their losses were significant and that the negligence of the defendant contributed to the damages. For instance, if the doctor failed to inform the patient of the 30 percent risk that the procedure would result in the loss of arm, and the operation was perfect but the patient lost an arm or limb, the doctor could be held responsible for negligence.
To have a viable malpractice lawsuit, the victim must prove that a competent attorney could have been able avoid financial loss or at least reduce the size. This is often referred to as the "but for" test. It is also important to show that the plaintiff has incurred expenses in pursuing a successful legal claim, which is higher than the amount demanded in compensation.
Our medical malpractice lawyers can explain the different types of damages that may be awarded in a
malpractice attorneys case, including past, current and future medical expenses, as well as lost income as well as pain and discomfort and other economic or non-economic loss. In general, the more severe the injury, the greater the award. A decision that is found to be a success could be rescinded by appeal. Settlements outside of court may be beneficial for a few clients. It will save time and money in litigation costs, aswell as avoid the potential risk of having a jury judge a case based on the basis of emotions rather than facts.