How to File a
Medical Malpractice Lawsuit
Many medical malpractice lawsuits require a lot of time and resources from both doctors and lawyers. This can include physician hours and work product as well as attorney time court costs, expert witness fees, and countless other expenses.
A serious injury that is the result of a healthcare professional's negligence, mistakes, or error can result in a
medical malpractice attorney malpractice claim. The injured party may be able to seek compensation damages, which could include actual economic loss such as past and future medical bills, and noneconomic losses such as pain and suffering.
Complaint
A medical malpractice suit has many moving parts, and requires evidence that is credible evidence to win. The patient who has been injured (or their attorney if they have died) must prove each of the following legal elements of the claim:
That a hospital or doctor had a responsibility to act in accordance with the applicable standard of care. The defendant violated this duty. The breach directly caused injury for the plaintiff. This aspect of an action for malpractice is called "causation." A breach of the standard of care is not a cause of injury; it must be shown that the breach directly caused the injury and was the direct cause of the injury.
To protect the rights of a patient, and to ensure that a physician does not continue to commit errors, it is required to file a complaint with the state medical board. A report is not a lawsuit but it can be a good first step in initiating the malpractice lawsuit. It is generally recommended to consult with a Syracuse attorney for malpractice prior to filing a report or any other type of document.
Summons
As part of the legal procedure, the summons or claim form is filed with the court, and then delivered to the defendant doctor. A lawyer for the plaintiff appointed by the court will go through the documents. If it is determined that there may be a malpractice case the lawyer will file an affidavit and a complaint with the court, detailing the claimed error.
The next step in the legal process is to obtain evidence through pretrial discovery. This involves submitting requests to document such as hospital invoices as well as notes from clinics and conducting a deposition of the doctor who is being sued where lawyers question the defendant on his or her knowledge of the case under oath.
The information provided will be used by the plaintiff's lawyer to prove the elements of an action for medical malpractice in the course of trial. The elements of a
Medical Malpractice Attorneys malpractice claim include the existence of a duty on the part of the physician to provide care and treatments to patients, the doctor's failure to fulfill this duty and a causal link between the breach and injury or death of the patient and the amount of damages to warrant a monetary compensation award.
Discovery
During the discovery phase in the discovery phase, both parties are entitled to request evidence relevant to their case. This includes medical records prior to and following the an alleged malpractice, details about expert witnesses as well as copies of tax returns or other documentation that pertains to the out-of-pocket expenses that the plaintiff claims they incurred, along with the names and contact information of any witnesses who are scheduled to appear at trial.
The majority of states have a statute of limitations which limits the amount of time a patient has to pursue a lawsuit after being injured due to an error in medical care. The length of time is typically determined by the law of the state and are subject to rules known as the "discovery rule."
To prevail in a medical malpractice lawsuit, an injured patient must prove that a doctor's negligence caused specific harm for example, physical pain or loss of income. They must also prove causation i.e. that the negligent treatment caused their death or injury.
Deposition
Depositions are question and answer sessions that are conducted in front of an official court reporter who records both the questions and the answers. Depositions are part of the discovery procedure, which consists of gathering information that can be used in the course of a trial.
Depositions allow attorneys to question witnesses, often doctors to answer a set of questions. When a physician is deposed and asked to answer questions honestly under oath. Usually, the physician is questioned questions by one attorney and then cross-examined by another attorney. This is an important stage in the case and the doctor must give it their full attention.
A deposition is a way for attorneys to gather a full background of the doctor's background in terms of his or their education, training and experience. This information is crucial to prove that the doctor did not meet your standard of care and caused you harm. Physicians who have been trained in this area often testify they have extensive knowledge of certain procedures and techniques that could be relevant to your particular medical-malpractice case.
Trial
Your lawyer will file a complaint with the court and a summons. The process begins with a legal requirement of disclosure called discovery, where you and your physician's team work together to gather information to prove your case. This usually includes medical records as well as testimony from experts.
The goal of proving malpractice is to establish that your doctor's actions did not meet the standards of care. Your lawyer must convince the jury that your injuries would have been avoided if your doctor had acted in accordance with the standard of care. Your doctor's lawyer will offer arguments that are contrary to the evidence presented to you by your lawyer.
Despite the myth that doctors are the target of unsubstantiated claims of malpractice the decades of evidence show that juries make reasonable estimates of negligence and damages and that juries tend to be skeptical of large amounts of money awarded. The majority of malpractice cases settle before trial.