How to File a Medical Malpractice Lawsuit
Both lawyers and doctors have to invest a lot of time and money in many medical malpractice lawsuits. This includes attorney time and court costs expert witness fees, and other expenses.
A medical malpractice lawsuit can be filed when a healthcare professional is negligent or has acted in a manner that is illegal, made an error, or failed to act. Injury victims can seek compensation for financial losses, such as past or future medical expenses and also non-economic damages, like discomfort and pain.
Complaint
A
medical malpractice lawsuit is a complex one and requires proof of credibility for success. The patient who has been injured (or their attorney if they've lost their claim) must show each of these legal aspects of the case:
The defendant violated this obligation. The defendant did not meet this obligation. The breach directly caused injury to the plaintiff. This element of a malpractice claim is called "causation." A breach of the standard of care is not a cause of injury; however, it must be proven that the breach directly caused the injury and was the proximate cause of the injury.
It is usually required to file a complaint with a medical board in the state to protect the rights of the patient and to ensure that the doctor does not commit additional mistakes. A report is not a lawsuit however, it is an effective first step towards getting the malpractice claim started. It is recommended to consult a Syracuse malpractice lawyer prior to making a report or other document.
Summons
A summons or claim is filed in the court and is sent to the doctor who is defendant as part of the legal process. A lawyer for the plaintiff appointed by the court will look over the documents. If it is determined that there could be a malpractice claim, the lawyer will file an affidavit and complaint with the court, describing the suspected mistake.
The next step in the legal process is obtaining evidence through pretrial discovery. This includes making requests for evidence, such as hospital billing and clinic notes, and taking the deposition of the defendant's doctor. Attorneys will then ask the defendant under oath as to his or her knowledge regarding the case.
The plaintiff's attorney will use this information to establish the elements of a claim for medical malpractice in court. The elements of a medical malpractice case include the existence of an obligation on the part of the physician to provide care and treatments to patients, the doctor's violation of this duty, a causal link between the breach and injury or death of the patient, and enough damages to warrant a monetary compensation award.
Discovery
During the discovery process both sides are allowed to seek and receive evidence pertinent to the case. This includes
medical malpractice lawyers records prior to and after an incident of alleged negligence, information about experts, copies of tax return or other documentation related to out-of pocket expenses that the plaintiff claims to have incurred, and the names and contact information of any witnesses who will be testifying during the trial.
The majority of states have a statute of limitation that allows injured patients only the time period of a certain amount of years after a medical error to bring a lawsuit. These time limits are typically set by law in the state, and they are subject to rules called the "discovery rule."
In order to win a medical negligence lawsuit, an injured patient has to prove that the doctor's negligence caused specific harm, such as physical pain, or loss of income. They must also prove causation -which means that the negligent treatment was the sole reason for their injuries or death.
Deposition
Depositions are question and answer sessions that take place in the presence of the court reporter who takes notes of both the questions and responses. The deposition is a part of the discovery process in which parties gather information to use in a trial.
Depositions allow attorneys to question witnesses, often doctors to answer a series of questions. If a doctor is deposed and questioned, they must answer the questions truthfully under oath. Usually, the physician is first questioned by an attorney, and then interrogated by a different attorney. This is a crucial stage of the case and requires the complete concentration and attention of the physician.
Depositions allow lawyers to get a complete background on the doctor's background in terms of his or his education, training, and experience. This information is essential to establish that the doctor violated the standard of care in your particular case and that the breach directly caused you harm. Doctors who have been trained in this field will typically declare that they have knowledge of certain procedures and techniques that may be relevant to a specific medical malpractice case.
Trial
A civil court is launched when your lawyer lodges a complaint and a summons with the appropriate court. This starts the process of legal disclosure known as discovery. You and your doctor's staff will work together to gather evidence to prove your case. This evidence typically includes medical records and the testimony of expert witnesses.
The goal of proving malpractice is to establish that your physician's actions did not meet the standards of care. Your lawyer must convince a jury that it is more likely than not your injuries wouldn't have occurred if your doctor acted according to the standard of care. The lawyer representing your doctor will argue arguments that are contrary to the evidence presented by your attorney.
Despite the belief that doctors are targets for unsubstantiated claims of malpractice the decades of evidence confirm that jury verdicts reflect reasonable judgments of negligence and damages, and that juries are skeptical of excessive award amounts. The vast majority malpractice cases are settled prior to trial.