How to File a Medical Malpractice Lawsuit
Many
medical malpractice lawsuits demand a significant amount of time and resources from both physicians and lawyers. This investment includes attorney time, court fees expert witness fees, and other costs.
A medical malpractice lawsuit can be filed when a healthcare professional is negligent or has committed misconduct or committed an error or failed to take action. The injured party may be able to seek compensation damages, including the actual economic losses, such as past and future
medical malpractice lawyers bills, as well as non-economic loss such as pain and suffering.
Complaint
A medical malpractice lawsuit has many moving parts and requires reliable evidence to succeed. The patient who has been injured, or their attorney in the event that the patient has passed away, must prove each of these legal elements:
That a hospital or doctor had a duty to act according to the applicable standard of care. The defendant breached this duty. The breach directly caused injury for the plaintiff. This is referred to as "cause". A breach of a standard of care doesn't in itself cause injury. It must be proven that it caused the injury directly and was the proximate reason for the injury.
In order to protect the rights of a patient, and to ensure that a physician doesn't commit any further errors, it is required to file a report with the state medical board. However, filing a complaint does not initiate a lawsuit and is often only a first step in getting the malpractice case moving. It is recommended to talk with an Syracuse malpractice attorney prior to filing any report or other document.
Summons
A summons or claim is filed in court and then sent to the defendant doctor as part of the legal process. A lawyer for the plaintiff appointed by the court will examine these documents. If it appears that there is a malpractice case the lawyer will file an affidavit, along with a complaint to the court, detailing the possible error.
The next step is to gather evidence through pretrial disclosure. This includes filing requests for documents like hospital billing and clinic notes, and taking depositions of the defendant physician. Attorneys will then question the defendant under oath regarding their knowledge of the case.
This information will be utilized by the lawyer representing the plaintiff to establish the elements of an action for medical malpractice in the course of trial. This includes the existence of an obligation on the doctor's part to provide care and treatment to patients; the doctor's breach of this duty; a causal relationship between the breach and the patient's death or injury and a sufficient amount of damages that result from the death or injury to be able to justify a monetary compensation.
Discovery
During the discovery phase, both parties are allowed to request any evidence relevant to their case. This includes
Medical malpractice Attorney records prior to and after the alleged malpractice, information about expert witnesses and tax returns or other documents relating to out-of-pocket expenses which the plaintiff claims to have incurred, along with the names and contact details for any witnesses who be present at trial.
There are many states with a statute of limitations which limits the amount of time a patient has to seek compensation for injuries caused by medical error. The time limit is usually set by law of the state, and are subject to rules called the "discovery rule."
To prevail in a medical malpractice claim the injured person must prove that a physician's negligence caused a specific harm like physical pain or loss of income. They must also prove causation i.e. that negligence caused their injury or death.
Deposition
Depositions are sessions of question and answer which take place in the presence of a court reporter who will record the questions as and the answers. The deposition is part of the process of discovery, which is the process of gathering evidence that can be used in a trial.
Attorneys can ask a series questions to witnesses, typically doctors. If a doctor is interrogated they must answer all questions in an honest and open manner under an oath. Typically, the doctor is first questioned by an attorney, and then interrogated by a different attorney. This is a crucial step in the trial and the doctor must focus on it with complete attention.
A deposition is a way for attorneys to gain a thorough understanding of the doctor's qualifications in relation to his or his education, training, and experience. This information is essential to showing that the doctor violated the standard of care you expect and that this breach caused you injury. For instance, doctors who have trained in the area of malpractice cases usually testify that they have vast experience performing certain procedures and practices that may be relevant to a particular medical-malpractice claim.
Trial
Your lawyer will make a complaint to the court, along with a summons. This triggers a legal procedure of disclosure called discovery, where you and the doctor's team collaborate to collect evidence to support your case. This evidence usually comprises medical records and testimony from an expert witness.
The objective of proving that you have committed a malpractice is to establish that the actions of your doctor were not in line with the standard of care. Your lawyer must convince a jury that it is more likely than not that your injuries would not have occurred if your physician acted according to the standard of care. Your doctor's lawyers will present defenses that contradict the evidence provided by your attorney.
Despite the legend that doctors are a target for malpractice claims that are frivolous, decades of research on the subject shows that jury verdicts usually reflect reasonable evaluations of damages and negligence and that juries are skeptical about excessive damage awards. The vast majority malpractice cases are settled prior to trial.