How to File a Medical Malpractice Lawsuit
Bringing a medical malpractice suit against a doctor or hospital requires evidence that the defendant acted in breach of his or her duty to patients. This can be evidence from hospitals and medical records.
Our lawyers are adept at taking effective depositions of witnesses. They could be doctors, other medical professionals in private practice or staff at a hospital or clinic.
Negligence
If a patient is seen by a doctor or hospital professional, they are entitled to certain standards of medical treatment. Unfortunately these standards aren’t always met or even violated. The consequences of this breach can be devastating.
A lawsuit can be brought against a medical professional when a patient is injured or dies due to the malpractice of that doctor. To have a legitimate claim, the injured patient must prove that four legal elements exist which include breach of duty, causation and damages.
Malpractice is defined as an act committed by the doctor that is against the accepted norms of the medical profession and causes injury to patients. It is an aspect of tort law that deals with civil wrongs that aren’t contraindicated by law or are criminal offenses.
Medical negligence is different from normal negligence in that the victim has to prove that the doctor was aware, or should have known, that their actions were going to cause harm before they are able to claim malpractice. Normal negligence does not. For example a surgeon who accidentally cut a vein or nerve during surgery would be guilty of negligence but not malpractice because the surgeon did not intend to cause harm.
In a medical malpractice case the defendant is under the obligation of treating the patient in accordance with the standard of care a reasonably prudent healthcare professional with similar knowledge and experience in similar situations would provide. The breach of duty is significant because it proves that the alleged negligent conduct caused the injury.
Damages
In a case of malpractice damages are determined based on the losses you have suffered due to a physician’s negligence. This could include financial losses, like future medical costs, and non-economic losses like pain and discomfort.
To be able to claim damages, you must show that the doctor did not fulfill the duty of care, that the doctor’s deviation from that standard caused injury, and this injury resulted in quantifiable financial consequences. This is a complex legal analysis that typically requires expert witness testimony.
Some of these losses can be identified quickly, for example when a mistake made by a doctor led to an infection, or other medical issues that required further treatment. Certain damages are more difficult to see for instance, when an expert misdiagnoses your illness and you do not receive the right treatment.
If the negligence of your doctor causes your death and you are unable to sue, you may be able to sue for wrongful death. You may be able to claim punitive damages in addition to the compensation you’d receive in a survival suit.
In the majority of states, there is a limit on the amount you can be awarded when you file a claim for malpractice. These caps vary by state and typically apply to both economic and non-economic damages. Some states have laws that limit the length of time you can wait before filing an action.
Time Limits
As with all lawsuits there are time limits that must be followed or the case may be barred. Generally speaking, a medical malpractice lawsuit must be filed within two to six years after the medical malpractice occurring. The timeframe for filing a malpractice lawsuit varies by state.
The time frame can be complex and it is essential to consult with an attorney immediately. The law firm will conduct an investigation to determine if there were any mistakes and if the case will be heard in the court. This process can take several weeks or even months.
Medical malpractice cases are subject to different laws and the statute of limitation is often altered. In Pennsylvania the statute of limitations for medical malpractice is two years from the date that they discovered the error. This is referred to as the discovery rule.
In certain states the statutes of limitations begin to run from the date when the malpractice occurred. This could be an issue when the mistake does not immediately trigger symptoms. Imagine, for instance, that a doctor negligently left a foreign object in the body of the patient following surgery. The patient may not discover the foreign object until at least three years after surgery. In this situation, the statutes of limitations may have started running from the date of surgery rather than the moment of discovery.
Expert Witnesses
A lot of medical malpractice law firm cases rely on expert witnesses to explain the details of the case. An expert witness for a plaintiff will testify about the doctor’s duty of taking care of the patient and the medical standards for the area and the specialization for that type of physician with similar qualifications and expertise and the ways that the defendant deviated from the standards. The expert will also explain how the deviance directly led to the injury of the patient.
The defendant will employ an expert to challenge the plaintiff’s expert and provide their professional opinion on whether or not the doctor met the standard of care. It is not uncommon for experts to disagree with one with respect to their opinions, but the fact finder determines who is the most trustworthy based on their education and experience.
It is advisable for the expert to be still working in the medical field since they are more informed about current practice. Jurors and judges typically believe that practicing professionals are more credible than experts whose sole source of income is testifying in court.
It is also advisable to hire an expert who specializes in the field of malpractice. For example an expert in medicine who is proficient in treating breast cancer could make a an even more convincing case for the reason for the plaintiff’s injury. A medical malpractice attorney in Ocala will know the best experts to speak with.
