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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 investment covers physician time and work product, attorney time, court costs, expert witness fees, and countless other expenses.

An injury resulting from a healthcare professional's negligence, misconduct, error or omission can lead to a medical malpractice claim. Injury victims may seek compensatory damages, including actual economic loss such as future and past medical bills, as well as non-economic damages like pain and suffering.

Complaint

A medical malpractice claim is a complex matter and requires a solid proof of the claim to be successful. The person who was injured or their lawyer when the patient has passed away, must prove each of these legal elements:

The defendant violated this duty. The defendant violated this duty. The breach directly caused injury to the plaintiff. This aspect of the malpractice claim is referred to as "causation." A breach of the standard of care itself is not a cause of injury, but it must be proven that the breach directly caused the injury and was the main cause of the injury.

In order to protect the rights of a patient, and to ensure that a doctor does not continue to commit mistakes, it is essential to file a claim with the state medical board. But, filing a report is not the start of an action and is usually just a step towards getting the malpractice claim moving. It is recommended to speak with an Syracuse malpractice lawyer prior to filing any report or other document.

Summons

A summons or claim is filed in court and sent to the defendant doctor as part of the legal procedure. A lawyer appointed by the court will examine these documents. If it appears there could be a malpractice claim and the lawyer files an affidavit and complaint with the court, detailing the possible mistake.

The next step in the legal process is obtaining evidence through pretrial discovery. This includes making requests for evidence including hospital billing or clinic notes, and taking the deposition of the defendant's doctor. Attorneys will then ask the defendant on oath about his or her knowledge of the case.

The information provided will be used by the lawyer for the plaintiff to prove the elements of a medical malpractice claim at trial. These include the existence of a duty on the physician's part to provide medical care and treatment to patients; the physician's violation of this duty; causality between the breach and the patient's death or injury and a significant amount of damages resulting from the death or injury to warrant a monetary award for compensation.

Discovery

During the process of discovery each side is entitled to request and receive evidence that is relevant to the case. This includes medical records prior to and after the an alleged malpractice, details about experts, copies of tax returns or other documentation related to expenses out of pocket that the plaintiff claims were incurred, along with the names and contact details for witnesses who are expected to be present at trial.

Most states have a statute-of-limitations that limit the length of time that a patient is allowed to pursue a lawsuit after being injured due to medical error. The time limit is set by the laws of the state and are subject to a rule known as the "discovery rules."

In order to win a medical malpractice lawsuits negligence case, an injured patient must prove that the doctor's negligence caused a specific injury, such as 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 the court reporter who takes notes of both the questions as well as the answers. Depositions are part of the process of discovery, which involves gathering information that can be used in the trial.

Depositions permit attorneys to question witnesses, often doctors to answer a set of questions. When a physician is deposed and questioned, they must answer all questions truthfully under oath. Usually, the physician is first questioned by an attorney and then interviewed by another attorney. This is a crucial step in the trial and the physician must focus on it with complete attention.

A deposition allows attorneys to gather a full background of the doctor in terms of his or their education, training and experience. This information is essential to proving that the physician breached the standards of care in your situation and that the breach resulted in injury. For example, physicians who have been trained in the field of malpractice cases typically will be able to prove that they have a lot of experience in performing certain procedures and techniques that may be relevant to a specific medical-malpractice claim.

Trial

A civil court is formally launched when your lawyer file a complaint and summons with the court of your choice. This begins the process of legal disclosure known as discovery. You and your doctor's team will collaborate in order to gather evidence that can prove your case. The evidence usually consists of medical records and testimony from experts.

The objective of proving that you have committed a malpractice is to prove that your physician's actions fell short of 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 offer defenses which contradict the evidence presented to you by your attorney.

Despite the legend that doctors are targets for malpractice claims that are frivolous, decades of empirical research shows that jury verdicts tend to reflect fair judgments about the extent of negligence and damages, and that juries are skeptical about inflated damage awards. The majority of malpractice cases settle before trial.