How to File a Medical Malpractice Lawsuit
Medical
malpractice lawsuits can be a bit complicated. There are specific guidelines to be followed including a specified time period during which the suit can be filed.
The claimant must also demonstrate that the doctor's actions resulted in injuries and losses. This will require medical and hospital documents.
Complaint
Your attorney will submit a court complaint as well as summons if he or she has found evidence of misconduct. The complaint will identify the defendants and make the allegations you make against them.
The basis for malpractice claims is the idea that a doctor or nurse or any other healthcare provider is obligated to a patient a standard of care. This is the standard of competence and prudence that a reasonably prudent doctor with similar training would use in similar circumstances. Your legal team must prove that your doctor violated this standard and caused you to suffer quantifiable damage.
It can be challenging to prove that a doctor's standards are comparable to another doctor's. This is why it is essential to select a law firm that has access to expert witnesses who can provide testimony about the medical field and what reasonable professionals in your doctor's situation would have done.
It's not just physicians who commit medical errors, hospital staff members, like nurses and anesthesiologists, also can be liable for malpractice. This is especially true for emergency room staff where mistakes are usually caused by a hectic atmosphere and overworked workers. Your attorney might be able obtain evidence from experts in the emergency room who can help demonstrate what should have been done and why your doctor's actions did not meet the standards.
Discovery
In the discovery phase the attorney will gather and examine evidence that could help in proving a malpractice case. This includes medical records, witness statements as also expert testimony. This information can also be requested by the legal team opposing the case. This is typically done through interrogatories as well as requests for production of documents. Certain documents may be considered to be confidential and confidential because of 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 challenging part of a medical malpractice claim because it requires expert witness testimony that supports your claim.
Your lawyer will also depose witnesses who can prove the doctor was negligent. This can include radiologists, dentists, nurses, assistants and others who were involved in the care of your health. Your lawyer will know how to take powerful and convincing depositions to make these witnesses admitting that the doctor was negligent.
The majority of lawsuits are settled before they reach trial. In cases involving medical malpractice, this is especially common as the costs of going to trial can be quite expensive. Once the facts of your case have been established, a settlement can be discussed between you and your doctor's insurance company. If a settlement isn't attainable the case will go to trial.
Trial
When your lawyer has completed the initial investigation and concludes that you have an excellent malpractice case, they will file the complaint. It will state clearly your allegations and be served to the defendant along with a summons.
Discovery is the next phase. This includes the exchange of medical records and depositions of witnesses. Your lawyer will use these evidence to prove that your doctor acted in violation of the standard of care. The goal is to prove that the error was the result of negligence on the part of the doctor and resulted in damages.
Aside from the witness statement In addition to the witness statement, your medical
malpractice attorney will also work with two or more expert witnesses to prove your claim. These experts will receive medical records and detailed information regarding your case, to prepare for their depositions and testimony. They can also assist in preparing your case for trial.
As part of the trial preparation, your attorney will begin negotiations for settlement with the defense. This process could last for many years. During this time, you will be recovering from your injuries and determining the size and amount of your injuries. It is in everyone's best interests to settle your case outside of court whenever possible. Your lawyer will carefully evaluate the merits of any settlement with your current and potential recovery. If the settlement proposal is reasonable and fair, then your lawyer will advise 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 contributed to those damages. If, for example, the doctor did not inform the patient of the 30% chance that the procedure could result in the loss of leg, and the surgery was flawless, but the patient lost an arm or limb, the doctor may be held accountable for negligence.
To be able to bring a valid malpractice lawsuit, the person who is suing must also show that a competent lawyer would have been able to reduce their financial loss, or at least minimize the amount. This is often referred to as the "but for" test. It is also important to show that the plaintiff has paid for expenses in the pursuit of a successful legal claim, which are more than the amount sought in compensation.
Our medical malpractice lawyers can explain the various kinds of damages awarded in a case of
malpractice lawsuits, including past, current and future medical expenses, as in addition to lost income, pain and discomfort, and other economic or non-economic losses. The higher the award, the more serious injury. However, a decision that is successful can sometimes be overturned on appeal. Therefore, settling the case outside of court can be a good option for some clients. It will save money and time on litigation costs. It also avoids the risk of a jury making a decision based on emotion rather than fact.