How to File a Medical Malpractice Lawsuit
Medical malpractice lawsuits are a complex matter. There are specific guidelines to follow, including a deadline within which a lawsuit can be filed.
The claimant must also prove that the doctor's actions resulted in injuries and losses. This will require hospital and medical documents.
Complaint
Your attorney will submit a court complaint as well as summons when he/she has discovered evidence of negligence. The complaint identifies the defendants in your case and outlines the allegations you're making against them.
Malpractice claims are founded on the idea that nurses, doctors, or other healthcare providers are obligated to a patient a certain standard of care. This is the standard of competence and care an appropriately prudent doctor with similar training would employ in similar circumstances. Your legal team has to prove that your doctor did not adhere to this standard and caused you to suffer quantifiable harm.
A doctor's standard of care is usually a matter of opinion, and is difficult to prove. This is why it is important to hire a law firm that has access to experts who can give testimony on the medical field and what a reasonable professional in your doctor's position would have done.
It is not just physicians who commit medical errors, hospital staff members, like nurses and anesthesiologists, also may be guilty of
malpractice attorneys. This is especially true for emergency room staff where mistakes are frequently caused by a busy environment and overworked employees. Your attorney might be able obtain evidence from experts in the emergency room who can explain the proper procedure and how your doctor's actions were not up to the standard.
Discovery
During the discovery process during the discovery phase, your lawyer will gather and analyze evidence that could help in proving a malpractice case. This includes medical documents, witness statements, expert testimony and more. This information can be requested by the opposing legal team. This is accomplished through interrogatories or requests for documents. However, certain documents may be classified as confidential or privileged due to privacy laws like HIPAA and its Privacy Rule.
It is also necessary to prove that your injury was caused by the medical professional's negligence. This is the most difficult part of a medical malpractice case, as it requires expert evidence to support your claim.
Your lawyer will also call witnesses who can prove the negligence of the doctor. This could include radiologists dentists, nurses, assistants and others who were involved in the treatment of your health. Your attorney will know how to take effective and strong depositions so that witnesses to accept that the doctor was negligent.
Most lawsuits are settled before they go to trial. In medical malpractice cases this is the most common due to the fact that going to trial can be expensive. Once the facts are established, you can negotiate a settlement with the doctor's insurer. If a settlement isn't reached, your case could go to trial.
Trial
After your attorney completes the initial investigation and decides you have an excellent malpractice case, they will file the complaint. The complaint will clearly state the allegations and will be given to the defendant in the summons.
The next phase involves discovery. This includes the exchange of medical records as well as depositions of witnesses. Your lawyer will use these statements to prove your doctor's breach of the standard of care. The goal is to establish that the error was caused by the negligence of your doctor, and caused damages.
In addition to the witness's testimony, your medical
malpractice attorney will work with two or three experts to support your claim. They will be provided with medical records and specific information about your case to prepare for their depositions and testimonies. They may also aid in making your case ready for trial.
Your attorney will start negotiations with the defense during the trial preparation. The process continues throughout the course of the trial and may last for several years. In this time, it is likely that you'll be recovering from your injuries and determining the amount and value of your losses. It is in everyone's best interests to settle the matter out of court whenever feasible. Your attorney will carefully evaluate the merits of a settlement against your present and long-term recovery. If the settlement proposal is reasonable then your attorney will convince you to accept it.
Damages
During the discovery phase, plaintiffs will have to prove that their losses are significant and that negligence on the part of the defendant has contributed to these damages. For instance, if the doctor failed to inform the patient of the 30 percent chance that the procedure could result in the loss of leg, and the procedure was flawless, but the patient lost an arm or limb, the doctor may be held accountable for malpractice.
To have a viable malpractice suit, the plaintiff must prove that a competent attorney could have been able reduce their financial loss, or at a minimum, lessen the size. This is commonly referred to as the "but for" test. In addition, it is necessary to demonstrate that the plaintiff's expenses in pursuit of a successful legal claim that is greater than the amount of compensation sought.
Our medical malpractice lawyers are able to provide a detailed explanation of the various types of damages that can be sustained in a malpractice lawsuit including past, present and future medical expenses and lost income, as well as pain and suffering as well as other non-economic losses. The greater the amount of money awarded, the more serious injury. A decision that is found to be a success could be rescinded by appeal. So, settling out of court could be a beneficial option for certain clients. It will save money and time in litigation fees. It also avoids the risk of a juror deciding a case based on emotion instead of fact.