How to File a
Medical Malpractice LawsuitMany
medical malpractice lawsuits demand a significant amount of time and resources from both doctors and attorneys. This can include attorney time as well as court fees expert witness fees, court costs and other expenses.
A medical malpractice claim can be filed in the event that a healthcare professional has been negligent or has committed misconduct or committed an error or acted in a way that was not. Injury victims may seek compensatory damages, including the actual economic loss, such as the future and past medical bills as well as non-economic damages like pain and suffering.
Complaint
A medical malpractice lawsuit is a complex one and requires evidence of credibility to be successful. The person who was injured, or their attorney in the event that the patient has passed away must be able to prove each of these elements:
The defendant breached the duty. The defendant breached this duty. That the breach directly caused injury to the plaintiff. This aspect of a malpractice claim is called "causation." A breach of the standard of care does not cause injury; however, it must be proven that the breach directly caused the injury and was the main cause of the injury.
To ensure a patient's rights, and to ensure that a physician is not committing further mistakes, it is essential to file a claim with the state medical board. However, filing a claim is not a way to start a lawsuit and is often just a step towards moving the malpractice claim. It is best to consult an Syracuse malpractice lawyer prior to making any report or other document.
Summons
As part of the legal process, a summons or claim forms is filed with the court and handed to the defendant doctor. A lawyer appointed by the court on behalf of the plaintiff will then review these documents and, if it is found that there is an issue with malpractice, they will file a complaint and affidavit to the court detailing the medical error that is claimed to be the cause.
The next step is to collect evidence through pretrial disclosure. This includes filing requests for documents like hospital billing and clinic notes, and taking the deposition of the doctor who is defending the case. Attorneys will then question the defendant under oath about the details of the case.
The attorney representing the plaintiff will use this information to establish the elements of a medical malpractice claim at trial. The elements of a medical malpractice claim include the existence of an obligation on the part of the doctor to provide care and treatments to patients, the physician's failure to fulfill this duty and a causal connection between the breach and the injury or death of the patient, and an amount of damages sufficient to warrant a monetary compensation award.
Discovery
During the discovery process, both sides are able to seek and receive evidence pertinent to the case. This includes medical records prior to and after an incident of alleged negligence, information on experts, copies of tax return or other documentation related to out-of pocket expenses that the plaintiff claims to have paid, as well as the names and contact information of witnesses who are expected to testify in the trial.
Most states have a statute of limitations that gives injured people a certain number of years after an injury or medical mistake to pursue a lawsuit. The time limit is set by state laws and are subject to a regulation known as the "discovery rules."
To prevail in a medical malpractice lawsuit the injured person must prove that a doctor's negligence caused a specific injury, such as physical pain or loss of income. They must also prove causation -which means that the negligent treatment was the sole reason for their injuries or death.
Deposition
Depositions are questions and answer sessions that take place in the presence of a court reporter who documents both the questions as well as the responses. The deposition is a part of the discovery process in which parties gather information for use in a trial.
Attorneys can ask a series questions to witnesses, which are usually doctors. If a doctor is deposed, he or she must answer all questions truthfully under an oath. Typically, the doctor is asked questions by one attorney and later cross-examined by a second attorney. This is an essential stage of the process and requires the full concentration and attention of the physician.
Depositions are a great way for
attorneys to get an extensive background on the doctor, including her training, education and experience. This information is crucial in convincing the court that the doctor did not adhere to your standards of care and that this breach resulted in injury to you. For instance, doctors who have completed training in the area of malpractice cases usually testify that they have vast experience in the execution of certain procedures and methods that may be relevant to a specific medical malpractice claim.
Trial
A lawsuit in a civil court is launched when your lawyer lodges a complaint and a summons with the court of your choice. This begins a legal process of disclosure, referred to as discovery where you and the doctor's team collaborate to collect evidence to prove your case. The evidence usually consists of medical records as well as testimony from experts.
The objective of proving that you have committed a malpractice is to establish that your doctor's actions fell short of the standard of care. Your lawyer must convince a jury that it is more likely than not your injuries would not have occurred had your doctor acted according to the standard of care. The attorneys for your doctor will present defenses that go against the evidence presented by your lawyer.
Despite the belief that doctors are the target of false claims of malpractice the decades of evidence demonstrate that juries make reasonable estimates of negligence and damages and that juries are skeptical of excessive award amounts. The majority of malpractice cases are settled prior to trial.