How to File a Medical
malpractice lawyers Lawsuit
Medical
malpractice lawsuits can be a bit complicated. There are specific guidelines that must be met including a time limit in which the suit can be filed.
In addition to proving negligence, the person seeking compensation must prove that the actions of the doctor resulted in losses and injuries. 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 lawsuit in court, along with summons. The complaint identifies the defendants in your case and clearly states the allegations you're making against them.
Malpractice claims are based upon the belief that nurses, doctors or other healthcare providers owe a patient a certain standard of care. This is defined as the amount of competence and care that a reasonably prudent medical professional trained similarly would exhibit in similar situations. Your legal team has to prove that your doctor did not adhere to this standard and caused you to suffer damages.
The standard of care a physician provides is often a matter of opinion, and is difficult to prove. This is why it's essential to select a law firm that has access to expert witnesses who can testify about the medical field and what an experienced professional in your doctor's position would have done.
Not only physicians can make mistakes, but so can hospital staff, including anesthesiologists and nurses. This is particularly the case for emergency room personnel where mistakes are frequently made due to a busy atmosphere and overworked personnel. Your lawyer may be able to obtain testimony from experts in the emergency department who can provide evidence of the proper procedure and how the actions of your doctor did not meet the standards.
Discovery
In the discovery phase, your attorney will collect and examine evidence that could prove a malpractice case. This includes medical records, witness statements as and expert testimony. This information can also be requested by the opposing legal team. This is usually done through inquiries and requests for production of documents. Certain materials may be privileged and confidential due to privacy laws, for instance HIPAA's Privacy Rule.
You must also prove your injury was the result of a doctor's negligence. This is the most difficult aspect of a medical malpractice case as it requires expert witness testimony that supports your claim.
Your lawyer will also call witnesses who can prove that the doctor was negligent. This could include radiologists, dentists nurses, assistants, as well as other individuals who were involved in the care of your health. Your attorney will know how to take effective and powerful depositions to make witnesses to acknowledge that the doctor was negligent.
Most lawsuits are settled prior to trial. This is especially true in medical
malpractice cases as the costs associated with the trial process can be high. Once the facts are established and you have a chance to negotiate an agreement with the doctor's insurer. If a settlement isn't possible your case will go to trial.
Trial
Your attorney will file a formal complaint after conducting the initial investigation. If they determine that you have a strong case of malpractice, then they will file the complaint. This will clearly outline the allegations and be sent to the defendant with the summons.
Discovery is the next step. This involves the exchange of medical records and depositions from witnesses. Your lawyer will use these statements to prove that the doctor acted in violation of the standard of care. The goal is to show that the error was the result of the negligence of the doctor, and caused damage.
Your medical malpractice attorney will also work with one or more expert witnesses to prove your claim. They will be provided with medical records and detailed information about your case to prepare for their depositions and testimony. They may also help in making your case ready for trial.
Your attorney will begin negotiations with the defense team as part of the trial preparation. This process is ongoing throughout the case and can take up to many years. In this time, you will be recovering from your injuries and determining the magnitude and value of your injuries. When you can, it's the best option for everyone to avoid litigation and settle out of court. Your attorney will carefully compare the merits of any settlement proposal with your current and future recovery. If the settlement is fair, your lawyer will encourage you to accept it.
Damages
During the process of discovery the plaintiffs must prove that their losses were significant and that the negligence of the defendant was a factor in the damages. For example, if the doctor did not inform the patient of the 30% possibility that the procedure might result in the loss of a limb, and the surgery was successful, but the patient lost an arm, then the medical professional may be held accountable for malpractice.
A victim may also show that a competent lawyer could have averted or reduced their financial loss. This is often referred to as the "but for" test. It is also important to show that the plaintiff has incurred costs to pursue a legal claim, that is higher than the amount demanded in compensation.
Our medical malpractice attorneys can provide an explanation of the different types of damages given in a malpractice lawsuit, including past, current and future medical expenses as along with lost income and pain and discomfort and other economic or non-economic losses. The greater the amount of money awarded, the more serious injury. However, a successful verdict may be rescinded in appeal. Therefore, settling the case outside of court can be a good option for some clients. It can save money and time in litigation fees. It also avoids the risk of a jury making a decision based on emotion instead of fact.