How to File a Medical
Malpractice LawsuitMedical malpractice lawsuits are a complex matter. There are certain guidelines that must be met including a time limit within which the suit could be filed.
The claimant must also demonstrate that the doctor's actions resulted in injuries and losses. This will require medical and hospital records.
Complaint
Once your attorney's investigation has discovered evidence of malpractice has occurred, he or she will file a complaint with the court along with a summons. The complaint will name the defendants and describe the allegations against them.
The basis for malpractice claims is the belief that a physician or nurse or other healthcare provider owes a patient a standard of care. This is defined as the degree of care and skill that a reasonably prudent medical professional with the same training would exhibit in similar situations. Your legal team must prove that your doctor did not adhere to this standard and resulted in you suffering quantifiable harm.
The standard of care a physician provides is often an issue of opinion, and it can be difficult to prove. This is why it's crucial to choose a law firm that has access to experts who can provide testimony about the medical field and what reasonable professionals in your doctor's position would have done.
Not only doctors make mistakes, but so do hospital personnel, like anesthesiologists and nurses. This is particularly the case for emergency room personnel where mistakes are usually due to a crowded atmosphere and overworked personnel. Your lawyer could be able to get an expert opinion from the emergency room personnel who can show the circumstances that led to the incident and how your doctor failed to fulfill this standard.
Discovery
During the discovery phase the attorney will collect and look over evidence that might provide evidence to support a claim for malpractice. This could include medical records, witness statements, as also expert testimony. The legal team of the other side may also be able to request the information from you and your attorney. This is typically done via interrogatories and requests for the production of documents. However, certain documents may be classified as confidential or privileged because of privacy laws, such as HIPAA and its Privacy Rule.
You must also prove your injury was caused by the negligent doctor. This is the most difficult component of a medical malpractice case because it requires an expert testimony to back your claim.
Your lawyer will also call any witnesses that can support that the doctor's actions were negligent. This could include nurses, assistants, radiologists, dentists and others who were involved in your care. Your attorney will be skilled in taking effective and convincing depositions that force these witnesses to admit that the doctor was negligent.
The majority of lawsuits are resolved or settled, prior to reaching the trial stage. This is particularly common for medical malpractice cases, since the cost of a trial can be very high. Once the facts are established and you have a chance to negotiate a settlement with the insurance company that covers the doctor. If a settlement is not reached, your case could be heard in court.
Trial
Once your attorney has completed the initial investigation and decides you have an excellent malpractice case, they will file the complaint. This will clearly outline the allegations and must be handed to the defendant in the summons.
Discovery is the next step. The next phase is discovery. This includes the exchange and deposition of witnesses. Your lawyer will make use of these documents to prove your doctor's breach of the standard of care. The goal is to show that the error was the result of the negligence of your doctor, and caused damage.
Your medical malpractice attorney will also work with one or more expert witnesses to support your claim. These experts will receive medical records as well as detailed information regarding your case in order to prepare for their testimony and deposition. They may also help in the preparation of your case for trial.
Your lawyer will begin settlement discussions with the defense during the trial preparation. This process continues throughout the trial, and can sometimes last for several years. In this time, it is likely that you will be recovering from your injuries while determining the size and amount of your losses. It's in everyone's best interest to settle out of court and avoid litigation whenever it is possible. Your attorney will carefully weigh the advantages of a settlement offer against your current and future recovery. If the settlement is reasonable your lawyer will convince you to accept it.
Damages
During the process of discovery the plaintiffs must prove that their losses were substantial and that the negligence of the defendant contributed to the damages. If, for example, the doctor failed to inform the patient of the 30 percent possibility that the procedure might result in the loss of a leg, and the surgery was perfect, but the patient lost an arm, then the medical professional could be held liable for negligence.
A victim may also show that a competent lawyer could have averted or reduced their financial loss. This is sometimes referred to as the "but for" test. In addition, it is necessary to demonstrate that the plaintiff incurred costs to pursue a successful legal claim that is more than the amount sought for compensation.
Our medical
malpractice lawyers are able to explain the various types of damages that could be given in a malpractice lawsuit that include past, current and future medical expenses, as well as lost income and pain and discomfort and other economic or non-economic loss. The higher the amount the more serious the injury. However, a successful verdict may be rescinded in appeal. So, settling out of court could be a viable alternative for some clients. It will save money and time in litigation fees. It also reduces the risk of a juror deciding a case based on emotions rather than facts.