How to File a Medical Malpractice Lawsuit
Medical
malpractice lawsuits are complex. There are specific guidelines to be followed including a time limit in which the suit can be filed.
In addition to proving negligence, the person seeking compensation must prove that the doctor's actions resulted in injuries and losses. This will require hospital and medical documents.
Complaint
Your attorney will prepare a court-appointed complaint and summons once he or she has discovered evidence of malpractice. The complaint will identify the defendants and make the allegations you have made 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 level of competence and care reasonable doctors with the same training would employ in similar situations. Your legal team needs to prove that your doctor violated this standard and caused injuries to which you sustained quantifiable damages.
A doctor's standard of care is usually an issue of opinion, and is often difficult to prove. It is important to hire an attorney who has access to experts in the medical field to testify about what a reasonable professional would have done.
It is not just physicians who make mistakes in their medical practice; hospital staff members, such as nurses and anesthesiologists can be liable for malpractice. This is especially true for emergency room staff where mistakes are often caused by a busy environment and overworked staff. Your attorney may be able obtain evidence from experts in the emergency department who can provide evidence of what could have been done and how your doctor's actions did not meet the standards.
Discovery
During the discovery phase, your attorney will gather and look over evidence that could be used to support a malpractice claim. This includes medical records, witness statements, expert testimony, and more. The other side's legal team may also be able to request this information from you and your attorney. This is typically done through interrogatories as well as requests for production of documents. Certain materials may be privileged and secret due to privacy laws, such as HIPAA's Privacy Rule.
You must also prove your injury is the result of the doctor's negligence. This is the most difficult part of a case involving medical negligence since it requires expert testimony to back your claim.
Your lawyer will also call witnesses who can prove the doctor's negligence. This can include nurses, assistants radiologists, dentists, and others who were involved in your care. Your lawyer is skilled in preparing powerful and effective depositions to get these witnesses to admit that the doctor's negligence was not their fault.
Most lawsuits are settled prior to trial. In the case of medical malpractice this is the most common since the cost of going to trial can be expensive. After the facts of your case have been established, a settlement can be reached between you and the insurance company of the doctor. If a settlement cannot be agreed upon, your case will be heard in court.
Trial
Once your attorney has completed the initial investigation and decides you have a solid malpractice case, they will file the complaint. This will clearly state the allegations and must be handed to the defendant along with a summons.
Discovery is the next stage. This includes the exchange of medical records and depositions from witnesses. Your lawyer will use these evidences to prove the doctor's breach of standard of care. The goal is to prove that the error was the result of negligence by the doctor and resulted in damages.
Your medical
malpractice law firm lawyer will also collaborate with one or more expert witnesses to support your claim. They will be provided with medical records as well as detailed information regarding your case in order to prepare for their deposition and testimony. They can also assist you in preparing your case for trial.
Your lawyer will initiate settlement discussions with the defense team as part of the trial preparation. This process could last for several years. During this time, you will be recovering from your injuries while determining the amount and value of your injuries. When you can, it's in everyone’s best interest to avoid litigation and settle out of court. Your lawyer will carefully evaluate the merits of any settlement offer with your current and potential recovery. If the settlement is fair the lawyer will advise you to accept it.
Damages
During the discovery process Plaintiffs must demonstrate that their losses were significant and that the negligence of the defendant contributed to those damages. For example, if the doctor failed to inform the patient that the surgery had a 30% chance of losing a limb. Moreover, if the surgery was performed perfectly but the patient lost their arm or limb, the doctor could be held accountable for negligence.
In order to have a legitimate malpractice suit, the plaintiff must also show that a competent lawyer could have been able to reduce their financial loss, or at the very least, reduce the size. It is sometimes referred to the "but for test". Additionally, it is required to prove that the plaintiff incurred costs to pursue a legal claim that is over the amount demanded as compensation.
Our medical malpractice lawyers are able to explain the various forms of damages caused by a malpractice lawsuit including past, present and future medical expenses, lost income, pain and suffering and other non-economic losses. The more serious the injury, higher the award. However, a decision that is successful can sometimes be overturned when appealed. Settlements outside of court can be advantageous for some clients. It can save time and money in costs for litigation, as well being able to avoid the potential risk of having a jury judge a case based on the basis of emotions rather than facts.