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How to File a Medical Malpractice Lawsuit

Lawyers and doctors must spend a significant amount of time and money in many medical malpractice lawsuits. This can include attorney time as well as court fees, expert witness fees and other costs.

A Medical malpractice attorney malpractice claim may be filed in the event that a healthcare professional was negligent or has acted in a manner that is illegal or committed a mistake or failed to take action. The injured party may be able to seek compensation damages, which could include actual economic loss such as past and future medical bills, and noneconomic expenses like pain and suffering.

Complaint

A medical malpractice case has many moving parts, and requires evidence that is credible evidence to win. The injured patient or their attorney if the patient has died, must demonstrate each of these legal elements:

The defendant breached that duty. The defendant erred in his obligation. The breach directly caused injury to the plaintiff. This element of a malpractice claim is called "causation." A breach of the standard of care itself is not a cause of injury; however, it must be proved that the breach directly caused the injury and was the direct reason for the injury.

It is usually necessary to file a complaint with a state medical body in order to safeguard the patient's rights and ensure that the doctor doesn't commit additional errors. However, filing a report is not a way to start a lawsuit and is often just a first step to moving the malpractice claim. It is often best to consult with an Syracuse malpractice lawyer prior to filing a report or other type of document.

Summons

As part of the legal process, a summons or claim form is filed with the court and then handed to the defendant doctor. A lawyer appointed by the court for plaintiff will then go over these documents and, if it appears that there could be an incident of malpractice then they will file a complaint along with an affidavit with the court describing the medical error that they believe to have committed.

The next step in the legal process is to obtain evidence through pretrial discovery. This involves the submission of requests for documentation, such as hospital billing and notes from clinics, and taking the deposition of the defendant physician. Attorneys then will question the defendant under oath about their knowledge of the case.

The plaintiff's attorney will use this information to demonstrate the elements of a medical malpractice claim in court. These include the existence of a duty on the doctor's part to provide treatment and treatment to patients; the physician's breach of this duty; a causal relationship between the breach and the patient's injury or death; and a sufficient amount of damages resulting from the injury or death to justify a monetary award of compensation.

Discovery

During the process of discovery each side is entitled to request and receive evidence that is relevant to the case. This includes medical records before and after the incident of an alleged malpractice, details about experts and tax returns or other documents relating to out-of-pocket expenses the plaintiff claims were incurred along with the names and contact details for witnesses who are expected to testify at trial.

Most states have a statute of limitation which allows injured patients an amount of time after a medical error to pursue a lawsuit. The length of time is determined by the laws of the state and are subject to a rule known as the "discovery rules."

To prevail in a medical malpractice lawsuit, a patient who has been injured has to prove that the negligence of a doctor caused a specific injury such as physical pain, or loss of income. They must also prove causation i.e. that the negligent treatment caused their death or injury.

Deposition

Depositions are questions and answer sessions that are conducted in front of a court reporter who records both the questions and the responses. The deposition is a part of the process of discovery in which parties collect information for use in the trial.

Depositions permit attorneys to ask witnesses, often doctors for a series of questions. When a physician is questioned, he or she must answer each question truthfully under oath. Usually the physician is asked questions by one attorney and then cross-examined by a different attorney. This is an important stage of the case that requires the complete attention and focus of the physician.

A deposition is a great opportunity for lawyers to gather details about the doctor, including his or their education, training, and experience. This information is essential to establish that the doctor violated the standards of care in your situation and that the breach caused you injury. Physicians who have been trained in this field will typically declare that they have experience in performing specific procedures and techniques that could be relevant to your particular medical malpractice lawyers malpractice case.

Trial

Your lawyer will file a complaint with the court and a summons. This begins a legal process of disclosure called discovery, where you and your physician's team work together to gather evidence to prove your case. This evidence typically includes medical records and testimony from expert witnesses.

The objective of proving that you have committed a malpractice is to establish that your physician's actions fell short of 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 doctor followed the standard of care. The lawyer representing your doctor will argue defenses which contradict the evidence presented to you by your lawyer.

Despite the legend that doctors are targets for frivolous malpractice claims decades of empirical research shows that jury verdicts usually reflect fair evaluations of damages and negligence and juries are skeptical of excessive damage awards. The majority of malpractice cases settle before trial.