How to File a Medical Malpractice Lawsuit
Both lawyers and physicians must invest considerable time and funds in numerous medical malpractice lawsuits. This can include physician hours and work product, attorney time, court costs and expert witness fees and many other costs.
A traumatic injury caused by an healthcare professional's negligence, incompetence, error or omission can result in
medical malpractice law firms malpractice claims. Injury victims may seek compensatory damages, which could include actual economic losses such as future and past medical bills, as well as noneconomic expenses like pain and suffering.
Complaint
A
medical malpractice attorneys malpractice case is a complicated one and requires evidence of credibility for success. The injured person, or their attorney should the patient die must demonstrate each of these legal elements:
That a doctor or hospital had a duty to act in accordance with the standards of care in force. The defendant breached this duty. The breach directly caused injury to plaintiff. This is referred to as "cause". A breach of a duty of care cannot necessarily cause injury. It must be proven that it directly caused the injury and was the primary reason for the injury.
It is sometimes necessary to file a formal complaint with a medical board in the state in order to protect the rights of the patient and ensure that the doctor doesn't commit further malpractice. However, filing a complaint is not a way to start an action and is usually just a beginning step in getting the malpractice case moving. It is generally recommended to consult a Syracuse malpractice lawyer prior to filing a report or any other type of document.
Summons
A summons or claim is filed in court and sent to the defendant doctor as part of the legal procedure. A lawyer for the plaintiff appointed by the court will look over the documents. If it appears there is a malpractice case the lawyer is required to file an affidavit and a complaint with the court, detailing the claimed mistake.
The next step is to collect evidence through pretrial disclosure. This includes filing requests for documents including hospital billing and clinic notes, and taking depositions of the defendant's doctor. Attorneys will then question the defendant under oath about his or her knowledge of the case.
The information provided will be used by the plaintiff's lawyer to establish the elements of an action for medical malpractice in court. The elements of a medical malpractice case include the existence of a duty on the part of the physician to provide treatment and care to patients, the doctor's failure to fulfill this duty and a causal connection between the breach and injury or death of the patient and an amount of damages sufficient to warrant a monetary compensation award.
Discovery
During the discovery process both sides are able to request and receive evidence that is relevant to the case. This includes medical records prior to and after the incident of mishaps, information about expert witnesses and tax returns or other documentation relating to out-of-pocket expenses the plaintiff claims were incurred, and the names and contact details of any witnesses who are scheduled to be called to testify in the trial.
Most states have a statute of limitation which allows injured patients a certain number of years after an injury or medical mistake to file a lawsuit. These limitations are set by state laws and are subject to a regulation known as the "discovery rules."
To prevail in a medical malpractice lawsuit, an injured patient must prove that the doctor's negligence caused harm to a specific person like physical pain or loss of income. They must also prove causation, i.e. that the negligent treatment led to their death or injury.
Deposition
Depositions are question-and-answer sessions that are conducted in the presence of a court reporter who records both the questions as well as the responses. Depositions are part of the discovery process through which the parties gather information to use in the trial.
Attorneys can pose a number of questions to witnesses, typically doctors. When a physician is questioned to testify, he or she must answer each question truthfully under oath. Usually, the physician is asked questions by one attorney and is then cross-examined in the presence of another attorney. This is an important stage of the case and requires the complete concentration and attention of the physician.
A deposition is a great opportunity for lawyers to gather a detailed background of the doctor, including his or his education, training and experience. This information is crucial to prove that the doctor did not meet the standard of care you expect and that this breach caused you injury. For example, physicians who have trained in the field of malpractice cases generally declare that they have a vast knowledge of certain procedures and techniques that may be relevant to a specific medical malpractice case.
Trial
A lawsuit in a civil court is officially initiated when your lawyer files a complaint and summons with the appropriate court. This starts a legal disclosure process called discovery. You and your doctor's team will work together in order to gather evidence that can prove your case. This evidence usually comprises medical records and testimony of an expert witness.
The goal of proving negligence is to prove that your doctor'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 could not have occurred had your physician acted according to the standard of care. Your doctor's lawyers will argue defenses that contradict the evidence provided by your attorney.
Despite the common belief that doctors are targets for frivolous claims of malpractice Evidence from decades show that juries make reasonable estimates of negligence and damages, and that juries are skeptical of inflated award amounts. The vast majority malpractice cases are settled prior to trial.