How to File a Medical Malpractice Lawsuit

Both physicians and lawyers must spend a significant amount of time and money in the many lawsuits involving medical malpractice. This investment covers physician time and work product as well as attorney time court costs, expert witness fees, and many other costs.

An injury caused by medical professional's negligence, incompetence, error or omission can give rise to medical malpractice claims. Victims of injury can seek compensation for economic losses, like future or past Medical malpractice attorneys expenses as well as non-monetary injuries, such as pain and discomfort.

Complaint

A medical malpractice claim is a complex matter and requires proof of credibility to be able to prevail. The patient who has been injured or their attorney, if the patient has died must prove each of these legal elements:

The hospital or doctor had a duty to follow the standard of care applicable. The defendant failed to meet 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 does not cause an injury, but it has to be proved that the breach directly caused the injury and was the main cause of the injury.

To protect the rights of a patient, and to ensure that a doctor does not commit further malpractice, it is necessary to file a complaint with the state medical board. A report is not a lawsuit but it could be an excellent first step in beginning the process of bringing a malpractice claim. It is usually recommended to consult an Syracuse malpractice lawyer prior to filing a report or any other type of document.

Summons

As part of the legal process an order or claim form is filed with the court and handed to the doctor who is the defendant. A lawyer appointed by the court on behalf of the plaintiff will review the documents and, if it is found that there is a case of malpractice then they will file an affidavit and complaint with the court describing the medical error that they believe to have committed.

The next step is to obtain evidence by pretrial disclosure. This includes filing requests for documents, such as hospital billing or clinic notes, and taking depositions of the doctor who is defending the case. Attorneys will then question the defendant under oath about his or her knowledge regarding the case.

The plaintiff's attorney will use this information to establish the elements of a medical negligence claim in court. 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 doctor's breach of this duty, 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 where both parties are permitted to request evidence pertinent to their case. This includes medical records prior to and after the incident of alleged malpractice, information about expert witnesses, copies of tax returns or other documentation related to out-of-pocket expenses which the plaintiff claims they incurred, as well as the names and contact details for witnesses who are expected to be called to testify in the trial.

There are many states with a statute of limitations that restricts the length of time that a patient is allowed to pursue a lawsuit after being injured due to an error in medical care. The length of time is determined by the laws of the state and are subject to a law known as the "discovery rules."

To prevail in a medical negligence case the injured person must prove that a doctor's negligence caused harm to a specific person like 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 are conducted in front of a court reporter who records both the questions as well as the answers. Depositions are part of the discovery process, which is about gathering information that can be used in the trial.

Attorneys are able to ask a series of questions to witnesses, typically doctors. If a doctor is deposed to testify, he or she must answer all questions truthfully under oath. Usually, the physician is asked questions by one attorney, and later cross-examined by a second attorney. This is a crucial step in the case and the physician has to focus on it with complete attention.

Depositions allow lawyers to gather a full background of the doctor's qualifications in relation to his or his education, training, and experience. This information is crucial for proving the doctor breached the standard of care you expect and resulted in injury to you. For example, physicians who have completed training in the field of malpractice cases will typically declare that they have a vast experience in performing certain procedures and techniques that may be relevant to a particular medical malpractice claim.

Trial

Your lawyer will make a complaint to the court and will issue a summons. The process begins with a legal requirement of disclosure called discovery, where you and your physician's team work together to gather evidence to prove your case. This typically includes medical records and testimony from an expert witness.

The objective of proving that you have committed a malpractice is to prove that your doctor's actions did not meet the standards of care. Your lawyer must convince a jury that it is more likely than not that your injuries would not have occurred if your doctor acted according to the standards of care. The lawyer for your doctor will present defenses that contradict the evidence presented by your attorney.

Despite the belief that doctors are targets for malpractice claims that are not meritorious, years of empirical research has shown that jury verdicts tend to reflect reasonable evaluations of damages and negligence and that juries are skeptical about excessive damage awards. The vast majority of malpractice cases settle before trial.