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How to File a Medical Malpractice Lawsuit

Many medical malpractice lawsuits demand a significant amount of time and resources from both doctors and attorneys. This includes attorney time and court costs expert witness fees, and other expenses.

A medical malpractice claim may be filed in the event that a healthcare professional has been negligent or has committed misconduct or committed a mistake or acted in a way that was not. Plaintiffs seeking compensation for their injuries can seek damages, including the actual economic losses such as future and past medical bills as well as non-economic expenses like pain and suffering.

Complaint

A medical malpractice case is complex and requires a solid proof of the claim to be successful. The injured party (or their attorney if they have died) must be able to prove each of the following legal elements of the claim:

The defendant breached that obligation. The defendant violated this duty. That the breach directly caused injury to the plaintiff. This is referred to as "cause". A breach of a standard of care cannot necessarily cause injury. It must be proven that it directly caused the injury and was the primary reason for the injury.

It is often required to file a complaint with a state Medical Malpractice Attorney board to protect the rights of the patient and ensure that the doctor does not commit any further errors. A report is not a lawsuit however, it is the first step to starting the malpractice claim. It is usually recommended to consult an Syracuse malpractice lawyer prior to filing a report, or any other document.

Summons

As part of the legal procedure, an order or claim form is filed with the court and then handed to the doctor who is the defendant. A lawyer appointed by the court for plaintiff will then look over the documents and, if they believe that there may be an instance of malpractice, they will submit a complaint and an affidavit with the court describing the medical error that they believe to have committed.

The next step is to gather evidence by pretrial disclosure. This includes making requests for evidence like hospital billing and clinic notes, and taking depositions of the doctor who is defending the case. Attorneys then will question the defendant under oath about his or her knowledge regarding the case.

This information will be used by the attorney representing the plaintiff to establish the elements of a claim for medical malpractice during trial. The elements of a medical malpractice claim include the existence of an obligation on the part of the doctor to provide care and treatments to patients, the doctor's breach of this duty, a causal link between the breach and injury or death of the patient, and enough damages to warrant a monetary compensation award.

Discovery

During the discovery process both sides are able to request and receive evidence that is relevant to the case. This includes medical malpractice law firm records before and after the an alleged malpractice, details about experts as well as copies of tax returns or other documents relating to the out-of-pocket expenses that the plaintiff claims were incurred and the names and contact details for witnesses who are expected to appear at trial.

Most states have a statute of limitations which allows injured patients a certain number of years after an injury or medical mistake to bring a lawsuit. These limitations are set by state laws and are subject to a rule called the "discovery rules."

In order to win a medical negligence lawsuit, a patient who has been injured has to demonstrate that the negligence of the doctor resulted in a specific injury, 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 question and answer sessions that are conducted in the presence of an official court reporter who records both the questions and the responses. The deposition is a part of the discovery process in which parties collect information for use in a trial.

Depositions allow attorneys to question witnesses, often doctors to answer a set of questions. If a doctor is deposed by a lawyer, the doctor must answer each question truthfully under the oath. Typically, the doctor is initially questioned by an attorney, and then interrogated by a different attorney. This is a crucial phase in the trial and the doctor must pay attention to it with all their heart.

Depositions allow lawyers to gain a thorough understanding of the doctor's background in terms of his or his education, training, and experience. This information is crucial to establish that the doctor violated the standards of care in your particular case and that the breach caused injury to you. Physicians who have been trained in the area will often testify they have extensive experience in performing certain procedures and techniques that could be relevant to a particular medical malpractice case.

Trial

Your lawyer will file a complaint with the court and issue a summons. This begins the legal disclosure process known as discovery. You and your doctor's team will work together in order to gather evidence that can prove your case. This typically includes medical records as well as testimony from an expert witness.

The goal of proving negligence is to prove that your physician's actions 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 could not have occurred had your doctor acted in accordance with the standard of care. The lawyer representing your doctor will argue defenses that contradict the evidence presented to you by your lawyer.

Despite folklore suggesting that doctors are a target for frivolous malpractice claims, decades of empirical research proves that jury verdicts tend to reflect reasonable evaluations of damages and negligence and that juries are skeptical about overinflated damages awards. The vast majority of malpractice cases are settled before trial.