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How to File a Medical Malpractice Lawsuit

A medical malpractice lawsuit against a doctor or hospital requires proof that the defendant has violated his or her obligation to patients. This can be evidence from hospitals and medical documents.

Our lawyers have experience taking depositions that are effective for witnesses. These may be doctors or other medical professionals in private practice, or employees at a clinic or hospital.

Negligence

Patients have a right to receive certain standards of care when they visit a hospital, doctor, or health care professional. Unfortunately, in some instances these standards are not adhered to or even violated. This can cause devastating results.

When someone is injured or death as a result of a doctor's malpractice, they may pursue a lawsuit against the medical professional. In order to file a valid claim, the patient must prove that four legal elements are present which include breach of duty, causation, and damages.

Malpractice is defined as the act or omission of a physician that deviates from the accepted norms of medicine in the medical community, and causes injury to the patient. It is a subset of tort law which covers civil violations that are not legally binding or criminal in nature.

Medical negligence differs from normal negligence in that the victim must prove that the doctor was aware that their actions would cause harm to be able to claim malpractice, however normal negligence doesn't. A surgeon who accidentally cuts or nicks the nerve or vein during surgery is guilty of negligence but not negligence. This is because the surgeon did not intend to cause harm to anyone.

In the event of a medical malpractice lawsuit, the defendant's duty is to treat the patient in line with the standards of care a prudent health care professional of similar experience and education would offer in similar circumstances. The breach of this obligation is a crucial aspect since it shows that the alleged negligence caused the injury.

Damages

In a malpractice lawsuit, damages are in relation to the losses you sustained due to negligence by a doctor. These can include both actual financial losses, such as the expense of medical treatment in the future as well as non-economic losses like suffering and pain.

To be able to claim damages, it is necessary to show that a doctor has violated an obligation and that his deviance from the standard of care resulted in injuries, and that the injury resulted in measurable financial costs. This is a complicated legal process that usually requires expert witness testimony.

Some of these losses can be identified in a matter of minutes, for instance when a mistake made by a doctor led to an infection, or other medical issue which required additional treatment. Some damage is more difficult to see like when an expert misdiagnoses your illness and you cannot get the correct treatment.

You can sue for wrongful death if your doctor's negligence causes your death. You can claim punitive damages in addition to the amount you would receive in a case of survival.

In the majority of states, there are limitations on what you can receive in a malpractice case. These limits vary from state to state and usually apply to both economic and non-economic damages. Certain states also have rules that limit the time it takes to start a lawsuit.

Time Limits

As with any lawsuit, there are specific time limits which must be adhered to or the case may be dismissed. A malpractice lawsuit should generally be filed between two and six years after the act occurred. The time frame varies by state.

It is important to talk with an attorney as soon as possible. The law firm will conduct an investigation to determine if malpractice occurred and if it will be accepted in court. This phase can last for weeks or even months.

Medical malpractice cases are subject to different laws, and the statute of limitations is usually modified. For instance in Pennsylvania the patient must make a claim within two years of the date they were aware of the malpractice attorneys, or when a reasonable individual would have recognized that the harm existed. This is known as the discovery rule.

In other states, the statute of limitations starts at the time the malpractice happened. This is an issue if the error does not cause immediate symptoms. For example, suppose the doctor is negligently leaving an object that is foreign in the body after surgery. The patient may not be aware of the object until three years after the surgery. In this scenario, the statutes of limitations may have started at the time of the procedure, not necessarily the moment of identifying the error.

Expert Witnesses

Expert witnesses are frequently called upon to explain the facts in medical malpractice cases. A plaintiff's expert will testify about doctors' obligations to the patient, medical requirements for doctors with similar qualifications in the area as well as the specific ways in which the defendant departed from the standard. The expert will explain how the departure directly contributed to the patient's injury.

The defendant will engage an expert to challenge the plaintiff's expert and offer their professional opinion on whether the doctor was able to provide the required care. It is common for experts to disagree with each and yet the factfinder determines who is most credible based on their expertise and experience.

It is recommended for the expert to remain working in the medical field as they are more knowledgeable about the current practices. Judges and jurors typically consider professionals who are practicing more credible than experts whose only source of income is the testifying in court.

It is also advisable to have an expert who has specialized in the field of malpractice. A medical professional with experience treating breast cancer, for instance, could present a a convincing argument as to the cause of an injury. An experienced Ocala medical malpractice lawyer will be aware of which expert witnesses to refer your case.