How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits can be a bit complicated. There are specific guidelines to follow, such as the time frame within which the lawsuit may be filed.

In addition to the need to prove negligence, the plaintiff must prove that the actions of the doctor resulted in losses and injuries. This will require hospital and medical records.

Complaint

When your attorney's inquiry has uncovered evidence that malpractice occurred, the attorney will file a formal complaint in court and issue summons. The complaint will identify the defendants and make the allegations you have made against them.

Malpractice claims are founded on the notion that nurses, doctors and other healthcare professionals owe patients an appropriate level of care. This standard is defined as the amount of expertise and prudence that a reasonably prudent medical professional trained similarly would exercise in similar circumstances. Your legal team has to prove that your doctor did not meet this standard that resulted in injuries due to which you suffered quantifiable damages.

The standard of care a physician provides is often an issue of opinion, and it can be difficult to prove. This is why it's important to hire a law firm with access to expert witnesses who can give testimony on the medical field and what reasonable medical professionals in your situation would have done.

It's not just doctors who make mistakes, but so do hospital staff, such as anesthesiologists and nurses. This is especially true for emergency room staff, as mistakes are often attributed to a chaotic environment and overworked staff. Your attorney may be able to get testimony from experts in the emergency department who can help demonstrate what could have been done and how your doctor's actions did not meet this standard.

Discovery

In the discovery phase, your attorney will collect and review evidence that may be used to support a malpractice claim. This could include medical records, witness statements as well as expert testimony. The legal team representing the other side will also have the opportunity to obtain this information from you and your attorney. This usually happens through inquiries and requests for production of documents. Certain materials could be protected and secret due to privacy laws, such as HIPAA's Privacy Rule.

You must also prove your injury is the result of the negligence of the doctor. This is the most difficult part of a medical malpractice case because it requires an expert testimony to back your claim.

Your lawyer will also depose any witnesses that can prove the doctor's negligent actions. This can include radiologists, dentists, nurses, assistants and other personnel who were involved in the treatment of your health. Your attorney will know how to take effective and strong depositions to make witnesses to admitting that the doctor's negligence.

The majority of lawsuits are settled prior to trial. In cases involving medical malpractice this is particularly common as the costs of going to trial can be expensive. Once the facts of your case are established, a settlement could be negotiated between you and the insurer of your doctor. If a settlement is not reached, your case could be heard in court.

Trial

When your lawyer has completed the initial investigation and concludes that you have a strong malpractice case they will file the complaint. This will clearly state the allegations and will be given to the defendant in a summons.

Discovery is the next stage. This involves the exchange of medical records as well as depositions from witnesses. Your lawyer will make use of these statements to establish the doctor's breach of standard of care. The goal is to establish that the error was the result of the negligence of the doctor, and caused damage.

Your medical malpractice lawyer will also collaborate with one or more expert witnesses to back your claim. These experts will receive medical records as well as detailed information about your case to prepare for their deposition and testimony. They may also help prepare your case for trial.

Your lawyer will begin talks with the defense team as part of the preparation for trial. The process can take several years. In this time, you will be recovering from your injuries while determining the size and amount of your injuries. It is in everyone's best interests to settle out of the court and avoid litigation as often as possible. Your attorney will carefully weigh the merits of a settlement against your present and long-term recovery. If the settlement is reasonable then your attorney will convince you to accept it.

Damages

During the discovery phase, plaintiffs have to prove that their losses are significant and that negligence on the part of the defendant has caused these damages. For example, if the doctor failed to inform the patient of the 30% likelihood that the procedure will result in the loss of arm, and the operation was perfect but the patient lost a limb in the process, then the medical professional could be held liable for negligence.

A victim could also prove that a skilled lawyer could have prevented or minimized the financial loss. This is sometimes called the "but for test". It is also important to show that the plaintiff's expenses in pursuit of a successful legal claim that are over the amount of compensation sought.

Our medical mendota malpractice lawsuit attorneys can explain the various types of damages given in a malpractice lawsuit including past, current and future medical expenses, as also lost income, pain and discomfort, and other non-economic loss. The higher the award the more serious the injury. A ruling that is deemed to be successful can be challenged by an appeal. Settlements outside of court may be beneficial for certain clients. It can save money and time on court costs. It also eliminates the risk of a jury deciding a case based on emotions rather than facts.