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 includes attorney time court fees, expert witness fees and other costs.
An injury resulting from medical professional's negligence, misconduct, error or omission can lead to medical malpractice claims. Plaintiffs seeking compensation for their injuries can seek damages, including the actual economic losses, such as past and future medical bills, and noneconomic loss such as pain and suffering.
Complaint
A medical malpractice case is complex and requires a solid proof of the claim to be successful. The injured party (or their attorney if they've died) must be able to prove each of the following legal elements of the claim:
The defendant breached the duty. The defendant breached this duty. The breach directly caused injury to plaintiff. This element is known as "cause". A breach of a duty of care will not in itself cause injury. It must be proved that it directly caused the injury and was the primary cause for the injury.
It is often required to file a complaint with a state medical board in order to protect the rights of the patient and to ensure that the doctor does not commit any further malpractice. However, filing a report does not initiate the process of a lawsuit, and is typically just a beginning step in moving the malpractice claim. It is advisable to speak with an Syracuse malpractice lawyer prior to filing any report or document.
Summons
A summons or claim is filed in court and sent to the doctor who is defendant as part of the legal process. A plaintiff's lawyer appointed by the court will review the documents. If it appears that there is a malpractice issue, the lawyer will file an affidavit, along with a complaint to the court, detailing the suspected mistake.
The next step is to collect evidence through pretrial disclosure. This involves submitting documents like hospital billing information or clinic notes, as well as taking the deposition of the defendant's physician in which attorneys ask the defendant about his or her knowledge of the case under an oath.
The information provided will be utilized by the lawyer representing the plaintiff to establish the elements of a claim for
medical malpractice during trial. This includes the existence of a duty on the physician's part to provide medical care and treatment to patients; the physician's infraction of this duty a causal relationship between the breach and the patient's injury or death and a sufficient amount of damages resulting from the death or injury to warrant a monetary award for compensation.
Discovery
During the discovery phase in the discovery phase, both parties are entitled to request evidence pertinent to their case. This includes medical records from before and after an incident of alleged negligence, information regarding experts and tax returns, copies of the tax return or other documentation related to expenses out of pocket the plaintiff claims have been incurred, and the names and contact information of witnesses who will be appearing during the trial.
The majority of states have a statute of limitations which allows injured patients the time period of a certain amount of years after a medical mishap to bring a lawsuit. These time limits are determined by state laws and are subject to a rule called the "discovery rules."
To win a
medical malpractice law firm malpractice lawsuit, the patient must show that the doctor's negligence resulted in a specific injury, 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 injury or death.
Deposition
Depositions are questions and answer sessions that are conducted in the presence of a court reporter who records both the questions as well as the answers. Depositions are part of the process of discovery in which the parties collect evidence to be used in a trial.
Attorneys are able to ask a series of questions to witnesses, which are usually doctors. If a doctor is interrogated and asked to answer questions in a straight and honest manner under an oath. Usually, the physician is asked questions by one attorney and then cross-examined by another attorney. This is a crucial step in the trial and the physician has to focus on it with complete attention.
A deposition allows attorneys to gain a thorough understanding of the doctor's background, including his or their education, training and experience. This information is essential to proving the doctor breached your standard of care and that this breach caused injury. For instance, doctors who have trained in the field of malpractice cases generally declare that they have a vast experience in the execution of certain procedures and methods that may be relevant to a specific medical-malpractice claim.
Trial
A civil court is formally launched when your lawyer file a complaint and summons with the court of your choice. This begins a legal process of disclosure, referred to as discovery which is where you and your doctor's team collaborate to collect information to prove your case. The evidence typically includes medical records as well as testimony from an expert witness.
To prove malpractice you must prove that the doctor's actions were not in accordance with the standards of care. Your lawyer must convince the jury that your injuries could be prevented if the doctor had followed the standards of care. Your doctor's lawyers will present defenses that contradict the evidence presented by your lawyer.
Despite the common belief that doctors are targets for unsubstantiated claims of malpractice, decades of empirical evidence confirm that jury verdicts reflect reasonable assessments of damages and negligence, and that juries are skeptical of large amounts of money awarded. The vast majority malpractice cases are settled before trial.