How to File a Medical Malpractice Lawsuit

Lawyers and doctors must invest significant time and money in the many lawsuits involving medical malpractice. This can include attorney time, court fees expert witness fees, court costs and other expenses.

A serious injury that is the result of medical professional's negligence, mistake, or omission could result in medical malpractice claims. Plaintiffs seeking compensation for injuries can file for economic losses, like future or past medical bills as well as non-monetary damages, such as pain and discomfort.

Complaint

A medical malpractice case is complex and requires proof of credibility for success. The injured patient (or their attorney if they've passed away) must prove each of the following legal aspects of the claim:

The defendant breached that duty. The defendant violated this duty. That the breach directly caused injury to the plaintiff. This aspect of an action for malpractice is called "causation." A breach of the standard of care itself does not cause an injury; however, it must be proved that the breach directly caused the injury and was the primary cause of the injury.

It is sometimes necessary to file a formal complaint with a state medical body to protect the rights of the patient and ensure that the doctor does not commit further negligence. But, filing a report does not start an action, and is often just a first step to getting the malpractice claim moving. It is often best to speak with an Syracuse attorney for malpractice prior to making a report or other type of document.

Summons

As part of the legal procedure, an order or claim form is filed with the court and handed to the defendant doctor. A court-appointed lawyer for the plaintiff will then review these documents and, if it appears that there could be a case of malpractice the lawyer will file a complaint and affidavit with the court, describing the medical error that they believe to have committed.

The next step is to obtain evidence through pretrial disclosure. This includes the submission of requests for documentation such as hospital bills and notes from clinics, and taking the deposition of the defendant's doctor. Attorneys will then ask the defendant under oath as to their knowledge of the case.

The lawyer for the plaintiff will utilize this information to establish the elements of a claim for medical malpractice at trial. The elements of a Medical Malpractice Attorney malpractice claim include the existence of a duty on the part of the doctor to provide care and treatments to patients, the doctor's violation of this duty and a causal link between the breach and injury or death of the patient and an amount of damages sufficient to warrant a monetary compensation award.

Discovery

During the process of discovery, both sides are able to request and receive evidence relevant to the case. This includes medical records before and after the incident of alleged malpractice, information about expert witnesses as well as copies of tax returns or other documentation related to out-of-pocket expenses which the plaintiff claims were incurred and also the names and contact details for witnesses who are expected to be called to testify in the trial.

Most states have a statute-of limitations that restricts the time a patient has to seek compensation for injuries caused by medical malpractice attorney error. The time limit is set by the laws of the state and are subject to a rule called the "discovery rules."

To win a medical malpractice lawsuit, an injured patient has to prove that the doctor's negligence resulted in specific harm like physical pain or loss of income. They must also prove causation -which means, 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 an official court reporter who records both the questions and answers. Depositions are part of the discovery process through which the parties gather information to be used in a trial.

Attorneys can pose a number of questions to witnesses, which are usually doctors. When a physician is deposed and questioned, they must answer all questions in a straight and honest manner under the oath. Typically, the doctor is initially questioned by an attorney and then interrogated by a different attorney. This is an important stage of the case that requires the full concentration and attention of the physician.

A deposition is a way for attorneys to get a complete background on the doctor's qualifications in relation to his or the training, education and experience. This information is crucial for convincing the court that the doctor did not adhere to your standards of care and resulted in injury to you. For example, physicians who have trained in the area of malpractice cases typically will affirm that they have extensive experience in performing certain procedures and methods that could be relevant to a specific medical malpractice case.

Trial

A lawsuit in a civil court is launched when your lawyer lodges a complaint and a summons with the appropriate court. This triggers a legal procedure of disclosure called discovery, where you and your doctor's team work together to gather information to prove your case. The evidence usually consists of medical records and the testimony of experts.

The purpose of proving malpractice is to prove that your physician's actions did not meet the standard of care. Your lawyer must convince the jury that your injuries could be prevented if the doctor had followed the standard of care. The lawyer representing your doctor will argue defenses which contradict the evidence presented to you by your lawyer.

Despite the legend that doctors are targets for malpractice claims that are frivolous, years of empirical research has shown that jury verdicts typically reflect fair assessments of negligence and damages and that juries are skeptical of inflated damage awards. The vast majority of malpractice cases are settled prior to trial.