How to File a Medical Malpractice Lawsuit
Medical
malpractice lawsuits can be a little complicated. There are specific guidelines to follow, for example a time limit within which the lawsuit may be filed.
In addition to proving negligence, the person seeking compensation must prove that the actions of the doctor resulted in injuries and losses. This will require hospital and medical documents.
Complaint
Your lawyer will file a court complaint and summons if he or she has found evidence of malpractice. The complaint will identify the defendants, and then state the allegations you make against them.
The basis for malpractice claims is the belief that a physician or nurse or other healthcare provider owes a patient a minimum standard of care. This is the standard of competence and care reasonable doctors who has similar training would apply in similar circumstances. Your legal team has to prove that your doctor violated this standard, resulting in injuries from which you sustained damages quantifiable.
It can be difficult to prove that a physician's standard is the same as another doctor's. This is why it's important to work with a legal firm with access to experts who can testify on the medical field and what reasonable medical professionals in the same situation as your doctor would have done.
It's not just doctors who make medical errors; hospital staff members, like nurses and anesthesiologists are susceptible to making mistakes. This is particularly relevant to emergency room personnel where mistakes are usually made due to a busy atmosphere and overworked workers. Your attorney may be able to get testimony from experts in the emergency department who can provide evidence of the correct procedure and how your doctor's actions were not up to the standard.
Discovery
During the discovery process your lawyer will gather and look over evidence that could be used to provide evidence to support a claim for malpractice. This includes medical records, witness statements, as also expert testimony. These records can also be requested by the opposing legal team. This is usually done through interrogatories and requests for production of documents. However, certain materials could be confidential or protected because of privacy laws, such as HIPAA and its Privacy Rule.
You must also prove your injury is due to negligence by the doctor. This is the most difficult aspect of a medical
malpractice attorneys case, as it requires expert evidence to support your claim.
Your lawyer can also question witnesses who can prove the doctor was negligent. This can include radiologists, dentists nurses, assistants, and others who were involved in the treatment of your health. Your lawyer will know how to take effective and powerful depositions to make these witnesses accept that the doctor was negligent.
Most lawsuits are resolved, or settled, before they get to the trial stage. This is particularly common in medical malpractice cases because the costs associated with a trial can be very expensive. Once the facts are established you can negotiate a settlement with the insurance company that covers the doctor. If a settlement isn't attainable, your case will then go to trial.
Trial
Your attorney will file a formal complaint after completing the initial investigation. If they determine that you have a convincing case of malpractice, then they will file the complaint. This will clearly state the allegations and will be given to the defendant with a summons.
Discovery is the next phase. This involves the exchange of medical records and depositions from witnesses. Your lawyer will make use of the evidence to prove that your doctor acted in violation of the standard of care. The aim is to demonstrate that the error was the result of the negligence of the doctor, and resulted in damages.
In addition to the witness statement, your medical malpractice attorney will work with two or more expert witnesses to prove your claim. They will be provided with medical records and details about your case in preparation for their deposition and testimony. They may also assist in preparing your case for trial.
Your lawyer will begin talks with the defense as part of the trial preparation. This process is ongoing throughout the trial and can last for many years. In this time, you are recovering from your injuries and determining the extent of your injuries. It is in everyone's best interests to settle out of the courtroom and avoid litigation whenever feasible. Your lawyer will carefully weigh the merits of a settlement against your current and long-term recovery. If the settlement seems reasonable the lawyer will advise you to accept it.
Damages
During the discovery phase, plaintiffs will be required to prove that their losses are substantial and that the negligence of the defendant contributed to these damages. For instance, if a doctor failed to inform the patient that a surgical procedure was a 30 percent risk of losing a limb, and the procedure was carried out perfectly but the patient lost their arm in the process, the medical professional could be liable for malpractice.
A victim may also show that a competent lawyer could have averted or reduced their financial loss. This is commonly referred to as the "but for" test. In addition, it is required to prove that the plaintiff has incurred expenses to pursue a legal claim that are in excess of the amount of compensation sought.
Our medical
malpractice lawyers are able to explain the different types of damages caused by a malpractice lawsuit including past, present and foreseeable medical expenses and lost income, as well as suffering as well as other non-economic losses. The greater the amount of money awarded the more serious the damage. However, a verdict that is deemed to be a success is sometimes overturned in appeal. Settlements outside of court can be beneficial for certain clients. It can save time and money in costs for litigation, as well as avoiding the possibility of having a jury decide a case based on the basis of emotion rather than fact.