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How to File a Medical Malpractice Lawsuit

Many medical malpractice lawsuits require a lot of time and resources from both physicians and lawyers. This can include attorney time, court fees expert witness fees, and other expenses.

A medical malpractice case can be filed in the event that a healthcare professional was negligent or has acted in a manner that is illegal or erred, or failed to take action. Plaintiffs seeking compensation for their injuries can seek damages, which include economic losses such as past and future medical malpractice law firm bills, as well as noneconomic loss such as pain and suffering.

Complaint

A medical malpractice lawsuit is made up of many moving parts and requires a solid evidence to be successful. The patient who has been injured or their attorney if the patient has died, must show each of these legal elements:

The defendant breached the duty. The defendant violated that duty. That the breach directly caused injury to the plaintiff. This element is known as "cause". A breach of a duty of care does not cause injury on its own. It must be proved that it caused the injury directly and was the primary cause for the injury.

To protect the rights of a patient, and to ensure that a doctor doesn't commit any further malpractice, it is necessary to file a claim with the state medical board. But, filing a report is not a way to start a lawsuit and is often just a beginning step in getting the malpractice claim moving. It is best to consult an Syracuse malpractice lawyer prior to making any report or other document.

Summons

As part of the legal process, a summons or claim forms is filed with the court and handed to the defendant doctor. A lawyer appointed by the court will go through these documents. If it appears there could be a malpractice claim the lawyer will file an affidavit, along with a complaint to the court, detailing the suspected error.

The next step is to obtain evidence through pretrial disclosure. This includes making requests for evidence including hospital billing or clinic notes, and taking the deposition of the doctor who is defending the case. Attorneys will then ask the defendant under oath about the details of the case.

The lawyer for the plaintiff will utilize this evidence to prove the elements of a claim for medical malpractice at trial. These include the existence of an obligation on the doctor's part to provide care and treatment to patients; the doctor's breach of this duty; causality between the breach and the patient's injuries or death; and a sufficient amount of damages resulting from the death or injury to justly award monetary compensation.

Discovery

During the discovery phase during the discovery phase, both parties are able to request any evidence relevant to their case. This includes medical records that were taken prior to and after an incident of alleged negligence, details about experts and tax returns, copies of the tax return or other documents related to expenses out of pocket the plaintiff claims to have caused, and the names and contact details of witnesses who will be appearing in the trial.

Most states have a statute of limitations that allows injured patients only a certain number of years after a medical malpractice lawyers mishap to pursue a lawsuit. Those time limits are usually determined by the law of the state and they are subject to rules called the "discovery rule."

To prevail in a medical malpractice lawsuit, an injured patient has to prove that the doctor's negligence resulted in specific harm like physical pain or loss of income. They must also prove causation i.e. that negligence caused their death or injury.

Deposition

Depositions are sessions of question and answer that are conducted in the presence of a court reporter who takes notes of the questions as well with the answers. The deposition is an element of the discovery process in which the parties collect evidence to be used in a trial.

Attorneys are able to ask a series of questions to witnesses, mostly doctors. When a physician is deposed they must answer all questions honestly under the oath. Typically, the doctor is asked questions by an attorney and later cross-examined by a second attorney. This is a crucial phase in the case and the doctor must pay attention to it with all their heart.

Depositions are a great opportunity for lawyers to gather a detailed background of the doctor, including her training, education and experience. This information is crucial to establish that the doctor violated the standards of care in your situation and that the breach directly resulted in injury. For instance, doctors who have been trained in the area of malpractice cases typically will testify that they have vast experience in the execution of certain procedures and practices that may be relevant to a particular medical-malpractice claim.

Trial

Your lawyer will submit a complaint to the court and a summons. This starts a legal disclosure process called discovery. You and your doctor's staff will work together to gather evidence to support your case. This evidence typically includes medical records and testimony from expert witnesses.

To prove malpractice you must prove that your doctor's actions did not meet the standards of care. Your lawyer must convince a jury that it is more likely than not your injuries could not have occurred had your doctor acted according to the standard of care. Your doctor's lawyers will present arguments that are contrary to the evidence presented by your attorney.

Despite the myth that doctors are a target for malpractice claims that are not meritorious, years of empirical research has shown that jury verdicts typically reflect fair judgments about the extent of negligence and damages and juries are skeptical of excessive damage awards. The vast majority malpractice cases are settled before trial.