How to File a Medical Malpractice Lawsuit
Medical
malpractice law firms lawsuits are a complex matter. There are certain guidelines to follow, such as 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 resulted in injuries and losses. This will require medical and hospital records.
Complaint
After your attorney's investigation has uncovered evidence that malpractice has occurred, he or she will file a complaint with the court and issue summons. The complaint names the defendants in your case and outlines the allegations you are making against them.
Malpractice claims are based upon the belief that doctors, nurses or other healthcare professionals owe patients an appropriate level of care. This is the level of expertise and prudence an appropriately prudent doctor with similar training would use in similar circumstances. Your legal team has to prove that your doctor breached this standard which resulted in injuries from which you sustained damages quantifiable.
The standard of care for a doctor is often an issue of opinion, and it can be difficult to prove. This is why it's important to hire a law firm that has access to experts who can testify about the medical field and what a reasonable professional in your doctor's position would have done.
Not only physicians can make mistakes, but so do hospital personnel, such as nurses and anesthesiologists. This is particularly relevant to emergency room personnel where mistakes are often caused by a hectic environment and overworked staff. Your attorney might be able to secure testimony from experts in the emergency department that can assist in proving what should have been done and why your doctor's actions did not meet this standard.
Discovery
During the discovery phase your lawyer will collect and review evidence that may prove a malpractice case. This includes medical records, witness statements as also expert testimony. The information could also be requested by the opposing legal team. This is typically done through interrogatories and requests for production of documents. However, certain materials could be privileged or confidential because of privacy laws like HIPAA and its Privacy Rule.
You must also prove that your injury is due to the negligence of the doctor. This is the most difficult aspect of a medical negligence case, as it requires expert testimony to back your claim.
Your lawyer will also call witnesses that can prove that the doctor was negligent. This can include nurses, assistants, radiologists, dentists and others who were involved in your care. Your lawyer will know how to take powerful and effective depositions to ensure that these witnesses accept that the doctor was negligent.
Most lawsuits are settled prior to trial. In cases involving medical malpractice this is the most common since the cost of going to trial can be quite expensive. After the facts of your case are established, a settlement can be discussed between you and your insurance company for the doctor. If a settlement is not agreed upon, your case will be heard in court.
Trial
Your lawyer will file a lawsuit after an initial investigation. If they find that you have a strong case of malpractice, they will file the complaint. This will clearly outline the allegations and must be handed to the defendant along with the summons.
The next step is discovery. This involves the exchange of medical records and depositions of witnesses. Your lawyer will use these documents to prove your doctor's violation of the standard of care. The objective is to establish that the error was a result of negligence on the part of the doctor and resulted in damages.
In addition to the witness's testimony Your medical
malpractice lawyer will work with a couple of experts to support your claim. They will be provided with medical records as well as detailed information about your case to prepare for their depositions and testimonies. They may also assist in preparing your case for trial.
As part of the trial preparation your attorney will begin negotiations for settlement with the defense. The process can take many years. In this time, you are recovering from your injuries and determining the extent of your damages. When you can, it's in everyone's best interest to avoid litigation and settle out of court. Your attorney will carefully weigh the merits of a settlement against your present and long-term recovery. If the settlement offers are reasonable, your lawyer will encourage you to accept it.
Damages
During the discovery process the plaintiffs must prove that their losses were substantial and that the negligence of the defendant contributed to the damages. For instance, if the doctor failed to inform the patient that a surgical procedure had a 30% chance of losing a limb and the procedure was completed perfectly but the patient lost their arm and the medical professional could be liable for malpractice.
To have a viable malpractice lawsuit, the victim must also prove that a competent lawyer could have been able stop their financial loss or at a minimum, lessen the size. This is sometimes referred to as the "but for" test. In addition, it is necessary to demonstrate that the plaintiff incurred costs to pursue a successful legal claim that are over the amount sought for compensation.
Our medical malpractice lawyers can explain the various forms of damages sustained in a
malpractice lawsuit including the past, present and future medical expenses, lost income, pain and suffering as well as other non-economic losses. The higher the amount the more serious the injury. However, a ruling that is successful could be reversed upon appeal. Settlements outside of court may be beneficial for certain clients. It can save money as well as time on litigation costs. It also avoids the risk of a jury making a decision based on emotions rather than facts.