How to File a Medical Malpractice Lawsuit

Both physicians and lawyers must invest significant time and money in a variety of medical malpractice lawsuits. This investment includes physician hours and work product and attorney time court costs as well as expert witness fees and countless other expenses.

An injury caused by medical professional's negligence, mistake, or omission can lead to a medical malpractice settlement malpractice claim. The injured party may be able to seek compensation damages, including the actual economic losses such as past and future medical bills as well as non-economic expenses like pain and suffering.

Complaint

A medical malpractice case is a complicated one and requires evidence of credibility to be successful. The patient who has been injured (or their attorney if they have died) must demonstrate each of the following legal aspects of the claim:

The defendant did not fulfill that duty. The defendant breached this duty. The breach directly caused injury to the plaintiff. This element is known as "cause". A breach of a standard of care will not necessarily cause injury. It must be demonstrated that it caused the injury directly and was the primary reason for the injury.

To safeguard a patient's rights, and to ensure that a physician does not commit further mistakes, it is essential to file a report with the state medical malpractice litigation board. However, filing a report is not a way to start an action, and is often just a first step to getting the malpractice claim moving. It is recommended to consult a Syracuse malpractice lawyer prior to making a report or other type of document.

Summons

As part of the legal process an order or claim form is filed with the court and delivered to the defendant doctor. A court-appointed lawyer for the plaintiff will then go over these documents and, if they believe that there is an instance of malpractice, they will file a complaint and affidavit with the court describing the medical error that is claimed to be the cause.

The next step is to collect evidence through pretrial disclosure. This involves submitting requests for documentation like hospital billing information and clinic notes and taking the defendant's deposition where lawyers question the defendant on his or her knowledge of the case under an oath.

The plaintiff's attorney will use this information to establish the elements of a medical negligence claim at trial. 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 violation of this duty and a causal link between the breach and injury or death of the patient, and a sufficient amount in damages to warrant a monetary award.

Discovery

During the discovery process both sides are entitled to request and receive evidence that is relevant to the case. This includes medical records before and following the suspected malpractice, information on expert witnesses, copies of tax returns or other documentation related to expenses out of pocket that the plaintiff claims they incurred, as well as the names and contact details for any witnesses who be called to testify in the trial.

Most states have a statute of limitation that permits injured patients some time after an injury or medical mistake to pursue a lawsuit. Those time limits are usually determined by the law of the state and they are subject to rules referred to as the "discovery rule."

To win a medical malpractice lawsuit, the patient must prove that the negligence of a doctor resulted in a specific injury, such as physical pain, or loss of income. They must also prove causation -- that is, that the negligent treatment was directly responsible for their injuries or death.

Deposition

Depositions are question and answer sessions that take place in the presence of a court reporter who records both the questions and the answers. The deposition is a part of the discovery procedure, which is about gathering information that can be used in the course of a trial.

Depositions allow attorneys to ask witnesses, typically doctors for a series of questions. If a doctor is deposed to testify, he or she must answer the questions truthfully under an oath. Typically, the doctor is first interrogated by an attorney before being cross examined by another attorney. This is a crucial phase of the process and requires the full attention and focus of the doctor.

A deposition can help attorneys gain a thorough understanding of the doctor's background in terms of his or his education, training, and experience. This information is crucial to prove that the doctor did not meet the standards of care in your case and that the breach caused you injury. Doctors who have been trained in the area will often be able to prove they have knowledge of specific procedures and techniques that may be relevant to your particular medical malpractice compensation-malpractice case.

Trial

A civil court is launched when your lawyer file a complaint and medical malpractice lawsuit summons with the appropriate court. This triggers a legal procedure of disclosure called discovery, which is where you and your doctor's team collaborate to collect information to prove your case. This evidence typically includes medical records and the testimony of experts.

To prove malpractice it is essential to establish that the doctor's actions were below the standard of care. Your lawyer must convince the jury that your injuries would have been avoided if your doctor had acted in accordance with the standards of care. Your doctor's lawyer will offer defenses that go against the evidence presented by your lawyer.

Despite folklore suggesting that doctors are targets for malpractice claims that are not meritorious, decades of research on the subject shows that jury verdicts generally reflect reasonable judgments about the extent of negligence and damages and that juries are skeptical about overinflated damages awards. The vast majority of malpractice cases settle prior to trial.