How to File a Medical Malpractice Lawsuit
Both physicians and lawyers must invest significant time and money in many medical malpractice lawsuits. This investment includes attorney time court fees expert witness fees, and other costs.
A
medical malpractice lawsuit can be filed in the event that a healthcare professional has been negligent or has committed misconduct or committed an error or failed to act. Injury victims may seek compensatory damages, which could include actual economic loss such as future and past medical bills, as well as noneconomic damages like pain and suffering.
Complaint
A medical malpractice case is complex and requires a solid proof of the claim to be successful. The patient who has been injured or their lawyer when the patient has passed away must show each of these legal elements:
The defendant breached that duty. The defendant erred in his obligation. The breach directly caused injury to plaintiff. This is referred to as "cause". A breach of a standard of care will not in itself cause injury. It must be proved that it caused the injury directly and was the primary reason for the injury.
To ensure a patient's rights, and to ensure that a doctor does not commit further mistakes, it is essential to file a claim with the state medical board. However, filing a report does not initiate an action and is usually just a beginning step in getting the malpractice claim moving. It is recommended to consult with a Syracuse malpractice lawyer before filing a report or other type of document.
Summons
As part of the legal procedure, the summons or claim form is filed with the court, and then delivered to the doctor who is the defendant. A plaintiff's lawyer appointed by the court will review these documents. If it is determined that there is a malpractice case the lawyer is required to file an affidavit as well as a complaint with the court, detailing the claimed error.
The next step is to gather evidence through pretrial disclosure. This involves submitting requests for documentation, such as hospital billing and clinic notes, as well as taking the deposition of the doctor who is defending the case. Attorneys then will question the defendant under oath about their knowledge of the case.
The attorney for the plaintiff will use this information to demonstrate the elements of a medical negligence claim at trial. The elements of a medical malpractice claim include the existence of an obligation on the part of the doctor to provide treatment and care to patients, the physician's breach of this duty and a causal link between the breach and injury or death of the patient and an amount of damages sufficient to warrant a monetary award.
Discovery
During the discovery process each side is entitled to request and receive evidence relevant to the case. This includes medical records from prior to and after an incident of negligence, information regarding experts as well as copies of tax returns or other documentation related to out-of-pocket expenses that the plaintiff claims to have caused, and the names and contact information of any witnesses who are expected to testify at trial.
Most states have a statute of limitation which allows injured patients a certain number of years after a medical mishap to pursue a lawsuit. These time limits are typically determined by state law, and are subject to rules called the "discovery rule."
To prevail in a
medical malpractice law firms malpractice lawsuit, an injured patient has to prove that the doctor's negligence resulted in a specific injury, such as physical pain, or loss of income. They must also prove causation i.e. that negligence caused their death or injury.
Deposition
Depositions are essentially question-and-answer meetings that take place in presence of a court reporter who is able to record the questions as in the responses. The deposition is part of the discovery process which is the process of gathering evidence that can be used in a trial.
Attorneys may ask a series of questions to witnesses, which are usually doctors. When a physician is deposed and questioned, they must answer all questions honestly under oath. Usually, the physician is first interrogated by an attorney and later the attorney is cross-examined by another attorney. This is a crucial phase in the trial and the physician has to pay attention to it with all their heart.
Depositions are a great way for attorneys to obtain an extensive background on the doctor, including his or his education, training and experience. This information is crucial to showing that the doctor violated your standards of care and caused injury. For example, physicians who have completed training in the field of malpractice cases typically will affirm that they have extensive experience in performing specific procedures and techniques that may be relevant to a specific medical malpractice case.
Trial
Your lawyer will make a complaint to the court and will issue a summons. This begins the process of legal disclosure, also known as discovery. You and your doctor's team will collaborate to collect evidence to support your case. This usually comprises medical records and expert witness testimony.
The purpose of proving malpractice is to establish that your physician's actions were not in line with the standard of care. Your lawyer must convince a jury that it is more likely than not that your injuries would not have occurred if your doctor acted according to the standard of care. The lawyer representing your doctor will argue arguments that are contrary to the evidence presented to you by your attorney.
Despite the myth that doctors are targets for fraudulent malpractice claims years of evidence confirm that jury verdicts reflect fair estimates of negligence and damages, and that juries tend to be skeptical of large amounts of money awarded. The vast majority malpractice cases are settled prior to trial.