How to File a
Medical Malpractice Lawsuit
Lawyers and doctors must invest significant time and money in the many lawsuits involving medical malpractice. This includes doctor hours and work product as well as attorney time, court costs and expert witness fees and countless other expenses.
A medical malpractice claim may be filed in the event that a healthcare professional was negligent or has committed misconduct or committed a mistake or failed to act. Injury victims may seek compensatory damages, which include economic loss such as past and future
medical malpractice lawyers bills, as well as non-economic damages like pain and suffering.
Complaint
A medical malpractice lawsuit is made up of many moving parts and requires reliable evidence to prevail. The person who was injured, or their attorney when the patient has passed away must prove each of these legal elements:
A hospital or doctor was required to follow the standards of care in force. The defendant violated that obligation. The breach directly caused injury to the plaintiff. This aspect of a malpractice claim is called "causation." A breach of the standard of care itself does not cause an injury; it must be proven that the breach directly caused the injury and was the primary reason for the injury.
To protect the rights of patients, and to ensure that a doctor doesn't commit any further wrongdoing, it's necessary to file a complaint with the state medical board. But, filing a report does not initiate an action, and is often just a beginning step in moving the malpractice claim. It is generally recommended to speak with a Syracuse attorney for malpractice prior to filing a report or any other document.
Summons
A summons or claim is filed in the court and is sent to the defendant doctor as part of the legal procedure. A lawyer appointed by the court for plaintiff will then review these documents and, if it is found that there is an incident of malpractice then they will file a complaint along with an affidavit before the court describing the medical error that is claimed to be the cause.
The next step is obtaining evidence by pretrial disclosure. This involves submitting documents such as hospital invoices or clinic notes, as well as taking the defendant physician's deposition during which lawyers ask the defendant on his or his knowledge of the situation under oath.
This information will be used by the plaintiff's lawyer to prove the elements of an action for medical malpractice in court. This includes the existence of a duty on the doctor's part to provide
Medical malpractice attorney care and treatment to patients; the physician's breach of this duty an causal connection between the breach and the patient's death or injury and a sufficient amount of damages that result from the accident or death to warrant a monetary award for compensation.
Discovery
During the discovery phase where both parties are permitted to request evidence that is relevant to their case. This includes medical records before and following the alleged malpractice, information about expert witnesses as well as copies of tax returns or other documents relating to out-of-pocket expenses which the plaintiff claims they incurred, along with the names and contact details for witnesses who are expected to testify at trial.
Most states have a statute-of limitations that restricts the time a patient has to pursue a lawsuit after being injured due to medical error. Those time limits are usually set by law of the state, and are subject to rules known as the "discovery rule."
To win a medical malpractice lawsuit, the injured patient has to show that the doctor's negligence resulted in a specific injury, like physical pain or loss of income. They must also prove causation- that is, that the negligent treatment was directly responsible for their injury or death.
Deposition
Depositions are question and answer sessions that are conducted in the presence of a court reporter who documents both the questions and responses. The deposition is a part of the discovery process, in which parties gather information for use in a trial.
Depositions permit attorneys to ask witnesses, often doctors to answer a series of questions. If a doctor is deposed to testify, he or she must answer each question truthfully under the oath. Usually, the physician is first interrogated by an attorney and later interviewed by another attorney. This is a crucial stage of the case that requires the complete concentration and attention of the doctor.
A deposition can help attorneys gain a thorough understanding of the doctor's background in terms of his or the training, education and experience. This information is crucial to proving that the physician breached the standard of care in your particular case and that the breach resulted in injury. For instance, doctors who have been trained in the field of malpractice cases typically will affirm that they have extensive experience performing specific procedures and techniques that may be relevant to a specific medical malpractice claim.
Trial
A civil court is launched when your lawyer files a complaint and summons with the court of your choice. This initiates a legal process of disclosure called discovery, where you and your physician's team work together to gather information to prove your case. This evidence usually includes medical records as well as expert witness testimony.
The goal of proving negligence is to establish that your doctor's actions did not meet the standard of care. Your lawyer must convince the jury that your injuries would have been prevented if your doctor had followed the standards of care. The lawyer representing your doctor will argue arguments that are contrary to the evidence presented by your lawyer.
Despite the myth that doctors are a target for frivolous malpractice claims, decades of empirical research shows that jury verdicts usually reflect reasonable assessments of negligence and damages and juries are skeptical of overinflated damages awards. The vast majority malpractice cases are settled before trial.