How to File a Medical Malpractice Lawsuit

Many medical malpractice attorney malpractice cases require a lot of time and resources from both physicians and attorneys. This can include attorney time, court fees expert witness fees, court costs and other expenses.

A serious injury that is the result of the negligence of a healthcare professional's incompetence, error or omission can lead to a medical malpractice claim. Plaintiffs seeking compensation for their injuries can seek damages, including actual economic loss such as past and future medical bills, and noneconomic losses such as pain and suffering.

Complaint

A medical malpractice attorneys malpractice case is complex and requires credible proof to be able to prevail. The injured party (or their attorney if they've died) must show each of these legal elements of the claim:

The defendant did not fulfill that duty. The defendant erred in his obligation. The breach directly caused injury for the plaintiff. This is referred to as "cause". A breach of a duty of care cannot directly cause injury. It must be proven that it directly caused the injury and was the primary reason for the injury.

To safeguard a patient's rights, and to ensure that a physician does not continue to commit wrongdoing, it's necessary to file a claim with the state medical board. However, filing a complaint does not initiate the process of a lawsuit, and is typically just a beginning step in moving the malpractice claim. It is recommended to consult with an Syracuse lawyer for malpractice before filing a report or any other type of document.

Summons

A summons or claim is filed in court and sent to the defendant doctor as part of the legal procedure. A plaintiff's lawyer who is appointed by the court will review the documents. If it appears there could be a malpractice claim the lawyer will file an affidavit and complaint with the court, describing the alleged error.

The next step in the legal process is obtaining evidence through pretrial discovery. This involves submitting requests for evidence like hospital billing information and clinic notes and taking the defendant's deposition, where attorneys question the defendant on his or his knowledge of the situation under oath.

The information provided will be used by the plaintiff's lawyer to establish the elements of a medical malpractice claim at trial. The elements of a medical malpractice claim include the existence of a duty on the part of the physician to provide medical and treatment to patients, the physician's breach 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 compensation award.

Discovery

During the discovery process, both sides are entitled to seek and receive evidence pertinent to the case. This includes medical records that were taken prior to and after an incident of alleged negligence, information on experts and tax returns or other documents relating to out-of pocket expenses that the plaintiff claims have been caused, and the names and contact details of any witnesses who will be testifying during the trial.

Most states have a statute of limitations that permits injured patients some time after a medical error to file a lawsuit. The length of time is determined by state laws and are subject to a rule known as the "discovery rules."

In order to win a medical negligence case the patient who was injured must prove that a doctor's negligence caused specific harm, 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 as well as the responses. The deposition is a part of the discovery process through which the parties gather information to be used in the trial.

Attorneys can pose a number of questions to witnesses, mostly doctors. When a physician is questioned, he or she must answer each question truthfully under the oath. Usually, the physician is questioned questions by an attorney and later cross-examined by a second attorney. This is an important stage in the trial and the physician has to give it their full attention.

A deposition is an excellent opportunity for lawyers to gather an extensive background on the doctor, including his education, training and experience. This information is essential to showing that the doctor violated the standards of care in your particular case and that the breach resulted in injury. For example, physicians who have been trained in the field of malpractice cases will typically testify that they have vast experience in the execution of certain procedures and techniques that may be relevant to a specific medical-malpractice claim.

Trial

A lawsuit in a civil court is formally launched when your lawyer is able to file a complaint as well as a summons with the appropriate court. This starts the legal disclosure process known as discovery. Your doctor and your staff will work together in order to gather evidence that can prove your case. This usually includes medical records and the testimony of experts.

To prove that you committed a crime you must prove that your doctor's actions were not in line with the standard of care. Your lawyer must convince the jury that your injuries would be avoided if your doctor had followed the standard of care. Your doctor's lawyer will present defenses that go against the evidence presented by your lawyer.

Despite the myth that doctors are a target for malpractice claims that are frivolous, decades of empirical research shows that jury verdicts tend to reflect reasonable judgments about the extent of negligence and damages, and that juries are skeptical about overinflated damages awards. The majority of malpractice cases settle before trial.