How to File a Medical Malpractice Lawsuit

Lawyers and doctors must invest significant time and money in numerous medical malpractice lawsuits. This investment covers physician time and work product, attorney time court costs and expert witness fees and many other costs.

A serious injury that is the result of the negligence of a healthcare professional's mistake, or omission can lead to medical malpractice claims. Victims of injury can seek compensation for economic losses, such as future or past medical expenses as well as non-monetary damages, like discomfort and pain.

Complaint

A medical malpractice lawsuit has many moving parts and requires reliable evidence to win. The injured person or their attorney should the patient die, must be able to prove each of these elements:

The defendant did not fulfill that duty. That the defendant breached that duty. The breach directly caused injury to plaintiff. This aspect of a malpractice claim is known as "causation." A breach of the standard of care is not a cause of injury; however, it must be shown that the breach directly caused the injury and was the primary cause of the injury.

To ensure a patient's rights, and to ensure that a doctor does not continue to commit mistakes, it is essential to file a claim with the state medical malpractice lawyers board. A report is not a lawsuit but it can be an effective first step towards getting the malpractice claim started. It is advisable to speak with a Syracuse malpractice attorney prior to making any report or other document.

Summons

A summons or claim is filed in court and sent to the doctor who is defendant as part of the legal procedure. A lawyer for the plaintiff appointed by the court will look over these documents. If it appears that there is a malpractice issue the lawyer will file an affidavit as well as a complaint with the court, describing the suspected error.

The next step in the legal process is obtaining evidence through pretrial discovery. This involves submitting documents such as hospital billing information and clinic notes and taking the defendant's deposition in which attorneys ask the defendant on his or her knowledge of the case under the oath.

The attorney representing the plaintiff will use this information to prove the elements of a medical malpractice case in court. The elements of a medical Malpractice Attorney malpractice claim include the existence of a duty on the part of the doctor to provide treatment and care to patients, the doctor's infraction of this obligation, a causal link between the breach and the injury or death of the patient and an amount of damages sufficient to warrant a monetary award.

Discovery

During the discovery phase, both parties are allowed to request evidence that is relevant to their case. This includes medical records prior to and after the incident of alleged malpractice, information about experts and tax returns, copies or other documents relating to out-of-pocket expenses the plaintiff claims were incurred as well as the names and contact information for witnesses who are expected to testify at trial.

Most states have a statute-of-limitations that restricts the length of time that a patient is allowed to seek compensation for injuries caused by an error made by a doctor. These time limits are typically set by law in the state, and they are subject to rules referred to as the "discovery rule."

To prevail in a medical malpractice lawsuit, the injured patient must demonstrate that the negligence of the doctor caused 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 sessions of question and answer which take place in the presence a court reporter, who will record the questions as in the responses. Depositions are part of the discovery process in which the parties collect evidence for use in the trial.

Attorneys may ask a series of questions to witnesses, mostly doctors. When a doctor is deposed and asked to answer questions honestly under an oath. Typically, the doctor is first interrogated by an attorney and later interrogated by a different attorney. This is a crucial phase in the trial and the physician has to focus on it with complete attention.

Depositions allow lawyers to get a complete background on the doctor's background, including his or her education, training and experience. This information is essential to convincing the court that the doctor did not adhere to your standards of care and that this breach caused you injury. Physicians who have received training in this area are likely to declare that they have knowledge of specific procedures and techniques that may be relevant to an individual medical-malpractice case.

Trial

Your lawyer will make a complaint to the court, along with a summons. This initiates the process of legal disclosure known as discovery. You and your doctor's team will collaborate to collect evidence to support your case. The evidence typically includes medical records and testimony from an expert witness.

To prove that you committed a crime it is necessary to prove that your doctor's actions were not in line with the standard of care. Your lawyer must convince jurors that it is more likely than not that your injuries would not have occurred if your doctor followed the standards of care. Your doctor's lawyers will argue defenses that go against the evidence provided by your attorney.

Despite the myth that doctors are the target of fraudulent malpractice claims, decades of empirical evidence demonstrate that juries make reasonable assessment of the severity of the damage and negligence, and that juries tend to be skeptical of excessive award amounts. The vast majority of malpractice cases settle before trial.