How to File a Medical Malpractice Lawsuit
A medical
malpractice lawsuit against a hospital or doctor must prove that the defendant breached his or her obligation to patients. This evidence can include hospital and medical records.
Our lawyers have a wealth of experience in taking effective depositions. They could be doctors, other medical professionals in private practice or staff at a hospital or clinic.
Negligence
Patients are entitled to be treated with respect to certain standards when they visit a doctor, hospital or health care professional. However, in a few instances these standards are not being met or even violated. The results of this breach could be devastating.
If someone suffers injury or death as a result of a physician's malpractice, they may pursue a lawsuit against the medical professional. In order to file a legitimate claim, the injured patient must prove that four legal elements are present: duty, breach of duty, causation and damages.
Malpractice is defined as an act or omission by medical professionals that is contrary to the norms of practice accepted within the medical profession, and results in injury to the patient. It is an aspect of tort law, which deals with civil wrongs that do not fall under legal obligations or criminal offenses.
Medical negligence is distinct from regular negligence because the victim must prove that the physician knew or should have known that their actions could cause harm to claim malpractice, but normal negligence does not. For example the surgeon who cuts a vein or nerve during surgery is negligent, but not malpractice as the doctor didn't intend to cause harm.
In the event of a medical malpractice lawsuit the defendant's obligation is to provide the patient with the standard of care a competent health professional with similar experience and training would provide in similar circumstances. The breach of this duty is an essential element since it proves that the negligent act caused the injury.
Damages
In a case of malpractice, damages are determined based on the losses you have suffered as a result a doctor's negligence. This could include financial losses, such as future medical bills, and non-economic damages, such as pain and discomfort.
In order to recover damages, it is essential to demonstrate that a doctor did not fulfill an obligation and that his violation of the standard of care resulted in injuries, and the damage caused financial harm that was quantifiable. This is a complex legal process that usually requires expert witness testimony.
Some of these losses are evident, such as if your doctor made an error that caused an infection or medical condition that required additional treatment in the aftermath. Some damages are more difficult to identify like when doctors misdiagnose your condition and you do not receive the right treatment.
You can sue wrongful death in the event that a negligent doctor causes your death. In these claims you're entitled to all the benefits you would have received in a lawsuit for survival, plus punitive damages.
In many states, there are limitations on the amount you can recover in a legal case. The caps differ by state, and often apply to both economic and non-economic damages. Some states also have rules that restrict how long you can wait to start a lawsuit.
Time Limits
Like any lawsuit, there are time limits which must be adhered to or the case could be barred. A
malpractice lawsuit should generally be filed between two and six years following the time when the mishap occurred. The exact time frame is determined by the state.
It is important to consult an attorney as soon as you can. The law
firm will conduct an investigation to determine if malpractice was committed and if it could be found to be valid in court. This process takes weeks or even months.
Medical malpractice cases are governed by different laws, and the statute of limitations is often altered. For instance in Pennsylvania the patient has to make a claim within two years from the time they realized the malpractice or the date a reasonable person would have known that the harm existed. This is known as the discovery rule.
In other states, the statute of limitations starts to run from the date the malpractice occurred. This can be an issue when the mistake is not immediately causing symptoms. For instance, suppose the doctor is negligently leaving a foreign object inside the body following surgery. The patient might not find the object until three years after the procedure. In this case, the statute of limitations might have started to expire from the date the procedure instead of the discovery of the error.
Expert Witnesses
A lot of medical malpractice cases rely on expert witnesses to present the facts of the case. An expert witness for the plaintiff will discuss the doctor's obligation of taking care of the patient, the medical standards in the region and specialization for the type of doctor who has similar qualifications and abilities and the ways the defendant departed from those standards. The expert will describe how the defendant's deviance directly impacted the patient's injuries.
The defendant will employ a professional to counter the plaintiff's expert and then provide their professional opinion on whether the doctor's actions met the standards of care. It is common for the experts to differ with each other, but the fact finder determines who is the most trustworthy based on their experience and education.
It is more beneficial for an expert to working in the medical field, because they'll have more knowledge of the current practice. Jurors and judges typically consider practicing doctors more trustworthy than those who rely exclusively on the testimony of a court.
It is also advisable to have an expert witness who specializes in the area of the malpractice. A medical expert who has had experience treating breast cancer for example, can make an argument that is convincing regarding the reason for an injury. A medical malpractice attorney in Ocala will know what experts to ask.