How to File a Medical Malpractice Lawsuit
Medical malpractice lawsuits are a complex matter. There are certain guidelines to be adhered to with a specific time frame within which the suit could be filed.
The claimant must also demonstrate that the doctor's actions led to injuries and losses. This will require medical and hospital records.
Complaint
Your lawyer will submit a court complaint as well as summons if he or she has found evidence of misconduct. The complaint will name the defendants and describe the allegations you make against them.
Malpractice claims are based on the idea that a doctor, nurse or other healthcare provider owes a patient a standard of treatment. This standard is the level of skill and caution an appropriately prudent doctor with similar training would employ in similar situations. Your legal team has to show that your doctor violated this standard, resulting in injuries from which you sustained damages quantifiable.
It can be challenging to prove that a physician's standards are comparable to another doctor's. This is why it's important to hire a law firm that has access to expert witnesses who can provide testimony about the medical field and what reasonable professionals in the same situation as your doctor would have done.
Not only physicians can make mistakes, but so do hospital personnel, like anesthesiologists and nurses. This is particularly applicable to emergency room staff where mistakes are frequently made due to a busy environment and overworked staff. Your lawyer may be in a position to secure an expert witness from the emergency room staff who can show what could have been done differently and how your doctor failed to meet the standard.
Discovery
In the discovery phase the attorney will gather and review evidence that may prove a malpractice case. This includes medical documents, witness statements, expert testimony and more. This information can be requested by the legal team opposing the case. This can be done via interrogatories or requests for documents. Certain materials are considered to be privileged and secret due to privacy laws, for instance HIPAA's Privacy Rule.
You must also prove that your injury is due to the negligence of the doctor. This is the most difficult element of a medical
malpractice law firm case because it requires an expert testimony to support your claim.
Your lawyer will also depose witnesses who can demonstrate that the doctor's actions were negligent. This can include nurses, assistants radiologists, dentists, and others who were involved in your treatment. Your lawyer will be adept in preparing strong and persuasive depositions to convince these witnesses to admit that the doctor's negligence was not their fault.
Most lawsuits are resolved, or settled, before they reach the trial stage. In cases involving medical malpractice this is particularly common since the cost of going to trial can be expensive. Once the facts are established you can negotiate an agreement with the insurance company of the doctor. If a settlement isn't feasible your case will proceed to trial.
Trial
Your attorney will file a complaint following an initial investigation. If they find that you have a solid case for malpractice, they will file it. The complaint will be clear in its allegations and will be served to the defendant along with a summons.
Discovery is the next phase. This involves the exchange of medical records as well as depositions from witnesses. Your lawyer will make use of the evidence to prove that your doctor acted in violation of the standard of care. The goal is to show that the error was caused by the negligence of the doctor, and caused damage.
Your medical malpractice attorney will also work with one or more expert witnesses to support your claim. They will be provided with medical records as well as detailed information regarding your case, to prepare for their deposition and testimony. They may also help prepare your case for trial.
As part of the trial preparation the attorney will initiate settlement negotiations with the defense. This process can last for several years. In this time, it is likely that you'll be recovering from your injuries while determining the size and amount of your losses. When possible, it's beneficial for everyone to avoid litigation and settle out of court. Your lawyer will carefully consider the merits of any settlement with your current and future recoveries. If the settlement is reasonable the lawyer will advise you to accept it.
Damages
During the discovery phase, plaintiffs have to prove that their losses are substantial and that negligence on the part of the defendant contributed to these losses. If, for example, the doctor did not inform the patient of the 30% likelihood that the procedure will result in the loss of limb, and the surgery was perfect but the patient lost a limb, then the medical professional could be held liable for negligence.
To be able to bring a valid
malpractice lawsuit, the victim must prove that a competent lawyer could have been able reduce their financial loss, or at least reduce its size. This is often referred to as the "but for" test. It is also necessary to show that the plaintiff has incurred expenses to pursue a legal claim, which are greater than the amount they seek in compensation.
Our medical malpractice lawyers can explain the various types of damages that can be given in a malpractice lawsuit including past, current and future medical expenses as along with loss of income and pain and discomfort and other economic or non-economic loss. The higher the amount, the more serious injury. A ruling that is deemed to be successful can be rescinded by appeal. Settlements that are not in court may be beneficial for certain clients. It will save time and money in litigation costs, aswell as avoiding the possibility of having a jury decide a case based on the basis of emotions instead of facts.