How to File a Medical Malpractice Lawsuit
Both physicians and lawyers must spend a significant amount of time and money in many
medical malpractice lawsuits. This investment includes attorney time as well as court fees expert witness fees, and other costs.
An injury caused by a healthcare professional's negligence, mistakes, or error can give rise to a medical malpractice claim. Plaintiffs seeking compensation for their injuries can seek damages, which include economic loss, such as the future and past medical bills as well as non-economic losses such as pain and suffering.
Complaint
A medical malpractice lawsuit is made up of many moving parts and requires credible evidence to be successful. The injured person, or their attorney in the event that the patient has passed away must demonstrate each of these legal elements:
That a hospital or doctor was bound to act in accordance with the applicable standard of care. That the defendant breached that duty. That the breach directly caused injury to the plaintiff. This element of a malpractice claim is known as "causation." A breach of the standard of care does not cause an injury, but it has to be proven that the breach directly caused the injury and was the direct cause of the injury.
To ensure the rights of patients, and to ensure that a doctor doesn't commit any further wrongdoing, it's necessary to file a report with the state medical board. A report is not a lawsuit, however, it is the first step to getting the malpractice claim started. It is often best to consult a Syracuse attorney for malpractice prior to making a report or other document.
Summons
As part of the legal procedure, the summons or claim form is filed with the court, and then delivered to the defendant physician. A court-appointed lawyer for the plaintiff will then look over the documents and, if they believe that there could be an instance of malpractice, they will file an affidavit and complaint to the court detailing the
medical malpractice attorneys error that is claimed to be the cause.
The next step is to gather evidence by pretrial disclosure. This involves submitting requests for documentation such as hospital billing information or clinic notes, as well as taking the defendant physician's deposition during which lawyers ask the defendant on his or his knowledge of the situation under an oath.
The attorney representing the plaintiff will use this information to prove the elements of a medical negligence claim in court. This includes the existence of a duty on the doctor's part to provide medical care and treatment to patients; the doctor's breach of this duty; an causal connection between the breach and the patient's injuries or death; and a sufficient amount of damages that result from the death or injury to justify a monetary award of compensation.
Discovery
During the discovery phase, both parties are allowed to request evidence relevant to their case. This includes medical records from before and after an incident of negligence, information regarding experts as well as copies of tax returns or other documents relating to out-of pocket expenses that the plaintiff claims have been incurred, and the names and contact details of any witnesses who will testify in the trial.
The majority of states have a statute of limitations which limits the amount of time a patient has to claim compensation after suffering injuries due to medical error. Those time limits are usually set by law of the state, and they are subject to rules known as the "discovery rule."
To prevail in a medical negligence case, an injured patient must prove that the doctor's negligence caused a specific harm that is physical pain or loss of income. They must also prove causation, i.e. that the negligent treatment resulted in their death or injury.
Deposition
Depositions are questions and answer sessions that are conducted in the presence of the court reporter who takes notes of both the questions and the responses. The deposition is an element of the discovery process, which consists of gathering information that can be used in a trial.
Depositions allow attorneys to ask witnesses, often doctors to answer a series of questions. When a physician is deposed, he or she must answer all questions honestly under an oath. Typically, the doctor is initially questioned by an attorney before being the attorney is cross-examined by another attorney. This is a crucial phase of the trial and requires the complete attention and focus of the doctor.
A deposition is a way for attorneys to gather a full background of the doctor's background in terms of his or the training, education and experience. This information is crucial to showing that the doctor violated your standard of care and that this breach caused you injury. Physicians who have been educated in the area will often declare that they have experience in performing certain procedures and techniques that could be relevant to your particular medical-malpractice case.
Trial
Your lawyer will make a complaint to the court, along with a summons. This begins the legal disclosure process known as discovery. Your doctor and your staff will work together to gather evidence to prove your case. The evidence typically includes medical records as well as expert witness testimony.
To prove malpractice it is necessary to prove that the doctor's actions were not in accordance with the standards of care. Your lawyer must convince the jury that your injuries would be prevented if the doctor had acted in accordance with the standard of care. The lawyers for your doctor will present arguments that do not agree with the evidence provided by your attorney.
Despite the belief that doctors are targets for malpractice claims that are frivolous, decades of research on the subject shows that jury verdicts usually reflect reasonable assessments of negligence and damages, and that juries are skeptical about damages that are exaggerated. The vast majority of malpractice cases settle before trial.