How to File a Medical Malpractice Lawsuit
Both lawyers and doctors have to spend a significant amount of time and money in many medical malpractice lawsuits. This can include attorney time as well as court fees expert witness fees, and other expenses.
An injury resulting from medical professional’s negligence, incompetence, error or omission can give rise to medical malpractice claims. The injured party may be able to seek compensation damages, which could include actual economic loss such as past and future medical bills, as well as non-economic losses such as pain and suffering.
Complaint
A medical malpractice case has many moving parts, and requires evidence that is credible evidence to prevail. The person who was injured (or their attorney if they’ve lost their claim) must demonstrate each of the following legal aspects of the claim:
A hospital or doctor was bound to follow the standards of care in force. The defendant erred in his duty. The breach directly caused injury to the plaintiff. This element of a malpractice claim is called “causation.” A breach of the standard of care doesn’t cause injury; however, it must be proved that the breach directly caused the injury and was the primary cause of the injury.
To protect the rights of patients, and to ensure that a doctor does not continue to commit wrongdoing, it’s necessary to file a claim with the state medical board. However, filing a report does not start a lawsuit and is often just a beginning step in making the malpractice claim move. It is advisable to speak with a Syracuse malpractice attorney prior to making any 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 appointed by the court for plaintiff will then go over these documents and, if it is found that there is a case of malpractice the lawyer will file a complaint along with an affidavit with the court describing the medical error that they believe to have committed.
The next step in the legal process is to obtain evidence through pretrial discovery. This includes submitting requests for documentation, such as hospital billing and clinic notes, and taking depositions of the doctor who is defending the case. Attorneys will then question the defendant under oath regarding his or her knowledge regarding the case.
The plaintiff’s attorney will use this information to prove the elements of a claim for medical malpractice at trial. These include the existence of a duty on the doctor’s part to provide treatment and treatment to patients; the physician’s breach of this duty; a causal relationship between the breach and the patient’s injuries or death; and a sufficient amount of damages that result from the death or injury to warrant a monetary award for compensation.
Discovery
During the discovery process both sides are entitled to request and receive evidence relevant to the case. This includes medical malpractice law firms records before and following the mishaps, information about experts and 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 for witnesses who are expected to testify at trial.
The majority of states have a statute of limitations that allows injured patients only some time after a medical mishap to pursue a lawsuit. The length of time is typically set by law in the state, and are subject to rules referred to as the “discovery rule.”
To win a medical malpractice case an injured victim must show that a doctor’s negligence caused a specific injury like physical pain or loss of income. They must also prove causation i.e. that the negligent treatment led to their injury or death.
Deposition
Depositions are question and answer sessions that take place in the presence of a court reporter who documents both the questions as well as the responses. Depositions are a part of the discovery process in which parties gather information to be used in a trial.
Depositions permit attorneys to ask witnesses, typically doctors for a series of questions. If a doctor is interrogated and questioned, they must answer all questions in a straight and honest manner under the oath. Usually the physician is asked questions by one attorney, and then cross-examined by a different attorney. This is an important stage in the case, and the physician must be attentive to the case.
Depositions are a great way for attorneys to obtain an extensive background on the doctor, including the doctor’s education, training and experience. This information is critical to showing that the doctor violated the standards of care in your situation and that the breach directly caused you harm. For example, physicians who have been trained in the field of malpractice cases will typically declare that they have a vast experience in the execution of certain procedures and methods that could be relevant to a specific medical malpractice claim.
Trial
Your lawyer will file a complaint with the court, along with a summons. This begins a legal disclosure process called discovery. You and your doctor’s team will collaborate in order to gather evidence that can prove your case. This typically includes medical records as well as expert witness testimony.
The purpose of proving malpractice is to establish that your physician’s actions did not meet the standard 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 lawyer representing your doctor will argue defenses that go against the evidence presented to you by your lawyer.
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 inflated award amounts. The vast majority malpractice cases are settled before trial.
