How to File a Medical Malpractice Lawsuit

Many medical malpractice lawsuits require significant time and resources from both physicians and attorneys. This can include attorney time as well as court fees expert witness fees, and other costs.

An injury resulting from medical professional's negligence, incompetence, error or omission can result in a medical malpractice claim. Victims of injury can seek compensation for economic losses, including future or past medical expenses as well as non-monetary damages, such as pain and discomfort.

Complaint

A medical malpractice case has many moving parts and requires reliable evidence to be successful. The patient who has been injured (or their attorney if they've passed away) must be able to prove each of the following legal elements of the claim:

A hospital or doctor had a responsibility to act according to the standard of care applicable. The defendant violated this duty. The breach directly caused injury to the plaintiff. This element is known as "cause". A breach of a standard of care doesn't cause injury on its own. It must be demonstrated that it directly caused the injury and was the primary cause for the injury.

It is often necessary to file a formal complaint with a medical board in the state in order to protect the patient's rights and ensure that the doctor doesn't commit further negligence. A report is not a lawsuit, but it could be a good first step in beginning the process of bringing a malpractice claim. It is often best to speak with an Syracuse malpractice lawyer prior to making a report or other document.

Summons

As part of the legal procedure, an order or claim form is filed with the court and delivered to the doctor who is the defendant. A lawyer appointed by the court will review these documents. If it is determined that there is a malpractice issue the lawyer is required to file an affidavit and complaint with the court, detailing the suspected mistake.

The next step in the legal process is to obtain evidence through pretrial discovery. This involves filing requests for documents, such as hospital billing or clinic notes, and taking depositions of the defendant physician. Attorneys will then ask the defendant under oath about their knowledge of the case.

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 claim include the existence of an obligation on the part of the physician to provide medical and treatment to patients, the physician's violation of this duty, a causal link between the breach and injury or death of the patient, and the amount of damages to warrant a monetary compensation award.

Discovery

During the discovery phase during the discovery phase, both parties are able to request evidence pertinent to their case. This includes medical malpractice lawyers records before and following the suspected malpractice, information on expert witnesses and tax returns, copies or other documentation related to the out-of-pocket expenses that the plaintiff claims to have incurred, along with the names and contact details of any witnesses who are scheduled to testify at trial.

Most states have a statute of limitation that gives injured people the time period of a certain amount of years after a medical mishap to pursue a lawsuit. Those time limits are usually determined by the law of the state and they are subject to a rule known as the "discovery rule."

To prevail in a medical malpractice lawsuit, an injured patient must prove that a doctor's negligence caused specific harm, such as physical pain or loss of income. They must also prove causation i.e. that the negligent treatment resulted in their death or injury.

Deposition

Depositions are question-and-answer sessions conducted in the presence of the court reporter who takes notes of both the questions and the answers. The deposition is a part of the process of discovery in which parties gather information for use in the trial.

Attorneys may ask a series of questions to witnesses, typically doctors. When a physician is deposed, they must answer all questions in a straight and honest manner under the oath. Usually, the physician is first questioned by an attorney before being the attorney is cross-examined by another attorney. This is a crucial phase in the case and the doctor must give it their full attention.

Depositions allow lawyers to obtain a detailed background on the doctor in terms of his or the training, education and experience. This information is crucial in prove that the doctor did not meet your standard of care and caused you injury. Doctors who have been trained in the area will often testify they have extensive experience performing certain procedures and techniques that could be relevant to a specific medical-malpractice case.

Trial

Your lawyer will submit a complaint to the court and a summons. This initiates a legal process of disclosure called discovery, where you and your physician's team work together to gather evidence to prove your case. The evidence usually consists of medical records as well as testimony from experts.

To prove malpractice it is essential to establish that the actions of your doctor were below the standard of care. Your lawyer must convince jurors that it is more likely than not your injuries would not have occurred had your doctor followed the standard of care. Your doctor's lawyers will present defenses that go against the evidence that your attorney has presented.

Despite folklore suggesting that doctors are a target for malpractice claims that are not meritorious, decades of empirical research shows that jury verdicts typically reflect fair assessments of negligence and damages and that juries are skeptical about inflated damage awards. The vast majority malpractice cases are settled prior to trial.