How to File a Medical Malpractice Lawsuit
Both lawyers and physicians must invest significant time and money in many
medical malpractice lawsuits. This includes doctor hours and work product, attorney time court costs and expert witness fees and many other costs.
An injury resulting from medical professional's negligence, misconduct, error or omission could result in a medical malpractice claim. Plaintiffs seeking compensation for injuries can file for financial losses, such as past or future medical expenses and also non-economic injuries, such as pain and discomfort.
Complaint
A medical malpractice claim is a complex matter and requires evidence of credibility to be successful. The injured patient, or their attorney if the patient has died must demonstrate each of these legal elements:
The defendant violated this duty. The defendant failed to meet this duty. The breach directly caused injury to the plaintiff. This element is known as "cause". A breach of a duty of care doesn't directly cause injury. It must be shown that it caused the injury directly and was the primary reason for the injury.
It is sometimes necessary to file a formal complaint with a state
medical malpractice attorneys board in order to protect the patient's rights and ensure that the doctor does not engage in further mistakes. A report is not a lawsuit but it could be an excellent first step in starting the malpractice claim. It is generally recommended to consult with a Syracuse malpractice lawyer prior to making a report or other type of 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 review these documents. If it appears that there is a malpractice case and the lawyer files an affidavit, along with a complaint to the court, detailing the possible error.
The next step in the legal process is obtaining evidence through pretrial discovery. This involves making requests for evidence like hospital billing and clinic notes, as well as taking depositions of the doctor who is defending the case. Attorneys then will question the defendant under oath regarding his or her knowledge regarding the case.
This information will be used by the attorney representing the plaintiff to prove elements of a claim for medical negligence in the course of trial. 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 infraction of this obligation and a causal connection between the breach and the injury or death of the patient and an amount of damages sufficient to warrant a monetary award.
Discovery
During the discovery process, both sides are allowed to seek and receive evidence pertinent to the case. This includes medical records prior to and after an incident of negligence, information on experts and tax returns, copies of the tax return or other documentation relating to out-of pocket expenses that the plaintiff claims have been attributable to them, and the names and contact details of any witnesses who will testify at trial.
Most states have a statute of limitations which allows injured patients the time period of a certain amount of years after a medical error to pursue a lawsuit. These limitations are set by state laws and are subject to a rule known as the "discovery rules."
To prevail in a medical malpractice lawsuit the patient who was injured must prove that the doctor's negligence caused a 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 questions-and-answer sessions that are conducted in the presence of a court reporter who records the questions as well with the answers. The deposition is an element of the discovery process which consists of gathering information that can be used in the course of a trial.
Depositions allow attorneys to ask witnesses, usually doctors to answer a set of questions. When a physician is questioned and questioned, they must answer the questions truthfully under the oath. Usually the physician is asked questions by an attorney and then cross-examined by another attorney. This is an essential stage of the case that requires the complete concentration and attention of the doctor.
A deposition allows attorneys to gain a thorough understanding of the doctor's background in terms of his or their education, training and experience. This information is crucial to showing that the doctor violated the standards of care in your situation and that the breach caused you injury. For instance, doctors who have completed training in the field of malpractice cases usually declare that they have a vast experience performing certain procedures and techniques that could be relevant to a specific medical-malpractice claim.
Trial
Your lawyer will submit a complaint to the court, along with a summons. This initiates a legal process of disclosure, also known as discovery, where you and your physician's team collaborate to collect evidence to prove your case. This typically comprises medical records and testimony from an expert witness.
To prove malpractice you must prove that the actions of your doctor were not in accordance with the standards of care. Your lawyer must convince jurors that it is more likely than not that your injuries wouldn't have occurred if your doctor acted in accordance with the standard of care. The lawyers for your doctor will present defenses that contradict the evidence presented by your lawyer.
Despite the belief that doctors are a target for frivolous malpractice claims, decades of research on the subject shows that jury verdicts typically reflect reasonable assessment of damages and negligence, and that juries are skeptical of damages that are exaggerated. The majority of malpractice cases are settled prior to trial.