How to File a Medical Malpractice Lawsuit
Medical malpractice lawsuits can be a bit complicated. There are specific guidelines to be adhered to including a time limit during which the suit can be filed.
The claimant also has to prove that the doctor's actions caused injuries and losses. This will require hospital and medical records.
Complaint
After your attorney's investigation has uncovered evidence that malpractice occurred, the attorney will file a lawsuit in court and issue a summons. The complaint will identify the defendants in your case, and clearly outlines the allegations that you are making against them.
Malpractice claims are founded on the notion that nurses, doctors and other healthcare providers owe a patient the same level of care. This standard is the level of competence and care an appropriately prudent doctor who has similar training would apply in similar circumstances. Your legal team has to prove that your doctor violated this standard and resulted in you suffering quantifiable harm.
It can be a challenge to prove that a physician's standards are comparable to another doctor's. This is why it is crucial to choose a law firm with access to expert witnesses who can give testimony on the medical field and what reasonable medical professionals in your doctor's situation would have done.
Not only physicians can make mistakes, but so do hospital personnel, such as anesthesiologists and nurses. This is especially applicable to emergency room staff where mistakes are frequently due to a crowded atmosphere and overworked personnel. Your lawyer may be able to secure expert testimony from emergency room staff who can show what should have happened and why your doctor was unable to meet the standards.
Discovery
During the discovery phase the attorney will collect and look over evidence that might support a malpractice claim. This includes medical records, witness statements expert testimony, and more. These records can also be requested by the opposing legal team. This is usually done through interrogatories and requests for the production of documents. Certain documents may be considered to be confidential and private due to privacy laws, for instance HIPAA's Privacy Rule.
It is also necessary to prove that your injury was caused by the negligent doctor. This is the most difficult aspect of a medical negligence case as it requires expert witness testimony to support your claim.
Your lawyer can also question witnesses to prove that the doctor was negligent. This can include radiologists, dentists nurses, assistants, and other people who were involved in the treatment of your health. Your lawyer will know how to conduct powerful and convincing depositions in order to get witnesses to accept that the doctor's negligence was a factor.
The majority of lawsuits are settled before they reach trial. For medical malpractice cases this is particularly common due to the fact that going to trial can be expensive. Once the facts are established, you can negotiate an agreement with the doctor's insurer. If a settlement is not reached, the case may go to trial.
Trial
When your lawyer has completed the initial investigation and concludes that you have a strong malpractice case they will file the complaint. This will clearly state your claims and will be served to the defendant along with a summons.
Discovery is the next step. This involves the exchange of medical records as well as depositions of witnesses. Your lawyer will use these evidence to show that your doctor did not follow the standard of care. The objective is to establish that the error was the result of the doctor's negligence and resulted in damages.
In addition to the witness's testimony, your medical malpractice attorney,
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Your lawyer will begin discussions on settlement with the defense during the trial preparation. This process can go on for many years. During this time, you are recovering from your injuries and determining the magnitude of your damages. It's in everyone's interest to settle the matter out of the courtroom and avoid litigation whenever possible. Your lawyer will carefully consider the merits of any settlement with your current and future settlement. If the settlement is reasonable your lawyer will advise you to accept it.
Damages
During the discovery process, plaintiffs must show that their losses were significant and that the negligence of the defendant contributed to those damages. For instance, if a doctor failed to inform the patient that a surgical procedure had a 30% chance of losing a limb, and the procedure was carried out perfectly but the patient lost their arm and the medical professional could be held liable for malpractice.
To have a viable
malpractice lawsuit, the victim must also prove that a competent attorney would have been able to prevent their financial loss or at the very least, reduce its size. This is often referred to as the "but for test". It is also required to show that the plaintiff has incurred costs in the pursuit of a successful legal claim, which are greater than the amount they seek in compensation.
Our medical malpractice lawyers are able to explain the different types of damages that can be attained in a malpractice case including the past, present and future medical expenses loss of income, suffering and pain and suffering, and other economic and non-economic losses. The more money you are awarded the more serious the injury. However, a verdict that is deemed to be a success may be rescinded when appealed. Therefore, settling out of court could be a good option for certain clients. It could save money and time on litigation costs. It also avoids the possibility of a jury deciding a case based on emotion instead of fact.