How to File a Medical Malpractice Lawsuit
Many medical malpractice lawsuits require a lot of time and resources from both physicians and attorneys. This investment includes physician hours and work product attorneys’ time, court costs as well as expert witness fees and countless other expenses.
A medical malpractice claim may be filed if a healthcare professional is negligent or has acted in a manner that is illegal or committed a mistake or failed to act. Plaintiffs seeking compensation for their injuries can seek damages, which could include actual economic loss, such as the past and future medical bills, and noneconomic damages like pain and suffering.
Complaint
A medical malpractice case is complex and requires evidence of credibility for success. The person who was injured or their attorney when the patient has passed away, must show each of these legal elements:
A hospital or doctor was required to act in accordance with the standard of care applicable. The defendant did not meet this obligation. The breach directly caused injury for the plaintiff. This is referred to as “cause”. A breach of a duty of care cannot directly cause injury. It must be shown that it caused the injury directly and was the primary cause for the injury.
It is usually required to file a complaint to a state medical board to protect the rights of the patient and ensure that the doctor does not engage in further errors. However, filing a claim is not a way to start the process of a lawsuit, and is typically just a step towards getting the malpractice claim moving. It is often best to consult a Syracuse lawyer for malpractice before making a report or other type of document.
Summons
A summons or claim is filed in the court and is sent to the doctor who is defendant as part of the legal process. A lawyer appointed by the court for plaintiff will then review these documents and, if it appears that there is an incident of malpractice then they will file a complaint and affidavit before the court describing the medical malpractice lawsuit error that is claimed to be the cause.
The next step in the legal process is to obtain evidence through pretrial discovery. This includes making requests for evidence such as hospital bills or clinic notes, and taking depositions of the defendant’s doctor. Attorneys will then question the defendant under oath about his or her knowledge of the case.
The information provided will be used by the lawyer for the plaintiff to establish the elements of a claim for medical malpractice in court. This includes the existence of a duty on the doctor’s part to provide medical care and treatment to patients; the physician’s breach of this duty; a causal relationship between the breach and medical Malpractice lawsuit the patient’s injuries or death and a substantial amount of damages resulting from the injury or death to justify a monetary award of compensation.
Discovery
During the discovery phase during the discovery phase, both parties are able to request evidence pertinent to their case. This includes medical records that were taken prior to and after an incident of alleged negligence, information regarding experts and tax returns or other documentation related to out-of-pocket expenses that the plaintiff claims have been incurred, and the names and contact information of witnesses who will testify in the trial.
The majority of states have a statute of limitations which allows injured patients some time after a medical mishap to pursue a lawsuit. The length of time is typically determined by state law, and they are subject to rules called the “discovery rule.”
To win a medical malpractice case the patient who was injured must prove that the doctor’s negligence caused specific harm like physical pain or loss of income. They must also prove causation, i.e. that the negligent treatment caused their injury or death.
Deposition
Depositions are questions and answer sessions that are conducted in front of an official court reporter who records both the questions as well as the responses. The deposition is an element of the process of discovery in which the parties gather information for use in a trial.
Depositions allow attorneys to ask witnesses, often doctors for a series of questions. If a doctor is interrogated, they must answer all questions in a straight and honest manner under an oath. Typically, the doctor is asked questions by one attorney and then cross-examined by a different attorney. This is a crucial step in the trial, and the physician must give it their full attention.
Depositions are a great way for attorneys to obtain details about the doctor, including their education, training, and experience. This information is crucial to prove that the doctor did not meet the standards of care in your situation and that the breach directly caused you harm. For example, physicians who have completed training in the area of malpractice cases generally testify that they have vast experience in performing certain procedures and methods that may be relevant to a particular medical malpractice case.
Trial
Your lawyer will make a complaint to the court and issue a summons. This starts the legal disclosure process known as discovery. You and your doctor’s staff will work together to gather evidence to prove your case. This typically includes medical records as well as testimony from an expert witness.
To prove malpractice it is essential to establish that the actions of your doctor were not in accordance with the standards of care. Your lawyer must convince a jury that it is more likely than not that your injuries could not have occurred had your doctor acted in accordance with the standard of care. Your doctor’s lawyer will present defenses that go against the evidence presented by your lawyer.
Despite the common belief that doctors are targets for frivolous claims of malpractice years of evidence shows that jury verdicts reflect reasonable assessment of the severity of the damage and negligence, and that juries tend to be skeptical of inflated award amounts. The vast majority malpractice cases are settled before trial.