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How to File a Medical Malpractice Lawsuit

Both lawyers and doctors have to invest significant time and money in many medical malpractice lawsuits. This can include attorney time and court costs as well as expert witness fees and other costs.

An injury caused by a healthcare professional's negligence, misconduct, error or omission can result in medical malpractice claims. Injury victims may seek compensatory damages, including actual economic loss, such as the past and future medical bills, and noneconomic loss such as pain and suffering.

Complaint

A medical malpractice lawyers malpractice case has many moving parts, and requires evidence that is credible evidence to succeed. The person who was injured (or their attorney if they've lost their claim) must show each of these legal elements of the claim:

The defendant breached the duty. The defendant erred in his obligation. The breach directly caused injury for the plaintiff. This aspect of a malpractice claim is known as "causation." A breach of the standard of care doesn't cause injury, but it must be shown that the breach directly caused the injury and was the proximate cause of the injury.

To protect the rights of patients, and to ensure that a doctor does not commit further malpractice, it is necessary to file a claim with the state medical board. A report is not a lawsuit but it could be a good first step in getting the malpractice claim started. It is advisable to speak with an Syracuse malpractice attorney prior to filing any report or other document.

Summons

A summons or claim is filed in court and then sent to the defendant doctor as part of the legal process. A lawyer for the plaintiff appointed by the court will review the documents. If it appears there is a malpractice issue the lawyer is required to file an affidavit as well as a complaint with the court, detailing the claimed mistake.

The next step is to collect evidence through pretrial disclosure. This involves submitting documents such as hospital billing information as well as notes from clinics and conducting a deposition of the doctor who is being sued where lawyers question the defendant on his or their knowledge of the matter under an oath.

This information will be used by the attorney representing the plaintiff to establish the elements of a medical malpractice claim in the course of trial. The elements of a medical malpractice claim include the existence of a duty on the part of the doctor to provide care and treatments to patients, the physician's infraction of this obligation and a causal link between the breach and injury or death of the patient, and an amount of damages sufficient to warrant a monetary award.

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 that were taken prior to and after an incident of negligence, information about experts and tax returns or other documents relating to out-of pocket expenses that the plaintiff claims have been attributable to them, and the names and contact details of witnesses who are expected to testify at trial.

Most states have a statute-of limitations that restricts the time a patient has to claim compensation after suffering injuries due to a medical mistake. These time limits are typically determined by the law of the state and are subject to rules known as the "discovery rule."

In order to win a medical negligence lawsuit, the injured patient has to prove that the negligence of a doctor resulted in a specific injury, like physical pain or loss of income. They must also prove causationwhich means, that the negligent treatment was directly responsible for their injury or death.

Deposition

Depositions are essentially question-and-answer meetings that take place in presence of a court reporter who records the questions as well in the responses. The deposition is an element of the discovery process, which is about gathering information that can be used in the course of a trial.

Attorneys are able to ask a series of questions to witnesses, usually doctors. If a doctor is deposed and questioned, they must answer all questions honestly under an oath. Usually, the physician is initially questioned by an attorney, and then interviewed by another attorney. This is an essential stage of the case and requires the complete attention and focus of the doctor.

Depositions allow lawyers to obtain a detailed background on the doctor's qualifications in relation to his or her education, training and experience. This information is crucial for proving the doctor breached the standard of care you expect and that this breach caused injury. For example, physicians who have been trained in the area of malpractice cases usually testify that they have vast knowledge of certain procedures and methods that could be relevant to a specific medical malpractice case.

Trial

A lawsuit in a civil court is officially initiated when your lawyer is able to file a complaint as well as a summons with the court of your choice. This starts the legal disclosure process known as discovery. Your doctor and your staff will work together to gather evidence to support your case. This typically comprises medical records and testimony from an expert witness.

To prove malpractice it is necessary to prove that your doctor's actions were below the standard of care. Your lawyer must convince the jury that your injuries could have been avoided if your doctor had followed the standard of care. Your doctor's lawyer will offer defenses which contradict the evidence presented by your attorney.

Despite the belief that doctors are targets for malpractice claims that are not meritorious, decades of empirical research shows that jury verdicts usually reflect reasonable evaluations of damages and negligence and that juries are skeptical about overinflated damages awards. The vast majority malpractice cases are settled before trial.