How to File a Medical Malpractice Lawsuit
Both lawyers and doctors have to invest considerable time and funds in many medical malpractice lawsuits. This investment includes attorney time as well as court fees as well as expert witness fees and other expenses.
A medical malpractice claim may be filed in the event that a healthcare professional has been negligent, has committed misconduct or erred, or failed to act. Plaintiffs seeking compensation for injuries can file for economic losses, such as past or future medical bills as well as non-monetary damages, like pain and discomfort.
Complaint
A medical malpractice claim is a complex matter and requires proof of credibility to be successful. The injured patient, or their attorney if the patient has died, must demonstrate each of these legal elements:
The defendant breached that obligation. The defendant violated that duty. The breach directly caused injury to the plaintiff. This is referred to as "cause". A breach of a duty of care cannot necessarily cause injury. It must be shown that it directly caused the injury and was the primary reason for the injury.
To safeguard the rights of patients, and to ensure that a physician doesn't commit any further malpractice, it is necessary to file a complaint with the state medical board. However, filing a complaint is not a way to start an action and is usually just a beginning step in getting the malpractice case moving. It is recommended to talk with an Syracuse malpractice attorney prior to making any report or other document.
Summons
A summons or claim is filed in court and then sent to the defendant doctor as part of the legal process. A plaintiff's lawyer appointed by the court will look over the documents. If it appears that there may be a malpractice case, the lawyer will file an affidavit and a complaint with the court, describing the alleged mistake.
The next step in the legal process is to obtain evidence through pretrial discovery. This involves submitting requests to document like hospital billing information or clinic notes, as well as taking the defendant physician's deposition where lawyers question the defendant on his or their knowledge of the matter under an oath.
The lawyer for the plaintiff will utilize this information to demonstrate the elements of a medical malpractice case during trial. The elements of a
medical malpractice law firm malpractice case include the existence of an obligation on the part of the physician to provide medical and treatment to patients, the doctor's breach of this duty as well as a causal connection between the breach and injury or death of the patient, and an amount of damages sufficient to warrant a monetary compensation award.
Discovery
During the process of discovery, both sides are allowed to seek and receive evidence pertinent to the case. This includes medical records from prior to and after an incident of negligence, information on experts as well as copies of tax returns or other documentation relating to out-of-pocket expenses that the plaintiff claims to have attributable to them,
firm and the names and contact information of any witnesses who are expected to testify at trial.
There are many states with a statute of limitations that limit the period that a patient must pursue a lawsuit after being injured due to a medical mistake. These time limits are determined by the laws of the state and are subject to a law known as the "discovery rules."
To prevail in a medical negligence case the patient who was injured must show that a doctor's negligence caused a specific injury for example, physical pain or loss of income. They must also prove causation -which means that the negligent treatment was directly responsible for their injuries or death.
Deposition
Depositions are essentially question-and-answer meetings which take place in the presence of a court reporter who will record the questions as in the responses. The deposition is part of the discovery procedure, which is the process of gathering evidence that can be used in the course of a trial.
Attorneys can pose a number of questions to witnesses, mostly doctors. If a doctor is interrogated and asked to answer questions truthfully under an oath. Usually, the physician is asked questions by one attorney and then cross-examined by a different attorney. This is a crucial phase of the process and requires the full concentration and attention of the doctor.
Depositions allow lawyers to gain a thorough understanding of the doctor in terms of his or the training, education and experience. This information is crucial to proving the doctor breached your standard of care and caused you injury. For example, physicians who have completed training in the field of malpractice cases usually affirm that they have extensive experience in performing specific procedures and techniques that may be relevant to a particular medical malpractice claim.
Trial
A lawsuit in a civil court is officially initiated when your lawyer files a complaint and summons with the appropriate court. This triggers a legal procedure of disclosure, also known as discovery, where you and your doctor's team work together to gather evidence to prove your case. This typically includes medical records as well as expert witness testimony.
To prove malpractice, you must establish that the actions of your doctor were below the standard of care. Your lawyer must convince the jury that your injuries would be avoided if your doctor had acted in accordance with the standard of care. Your doctor's lawyer will offer defenses that contradict the evidence presented to you by your attorney.
Despite the common belief that doctors are the target of frivolous claims of malpractice, decades of empirical evidence confirm that juries make reasonable estimates of negligence and damages, and that juries tend to be skeptical of excessive award amounts. The majority of malpractice cases settle before trial.