How to File a Medical Malpractice Lawsuit

Many medical malpractice lawsuits require significant time and resources from both physicians and lawyers. This can include attorney time as well as court fees expert witness fees, and other costs.

An injury resulting from a healthcare professional's negligence, incompetence, error or omission can give rise to medical malpractice claims. Plaintiffs seeking compensation for injuries can file for economic losses, such as future or past pharr medical malpractice lawyer expenses as well as non-monetary injuries, such as pain and discomfort.

Complaint

A medical malpractice lawsuit is made up of many moving parts and requires credible evidence to win. The person who was injured, or their attorney should the patient die, must show each of these legal elements:

The defendant breached that obligation. The defendant breached this duty. The breach directly caused injury for the plaintiff. This element is known as "cause". A breach of a duty of care doesn't cause injury on its own. It must be proved that it directly caused the injury and was the primary cause for the injury.

To protect the rights of a patient and to ensure that a physician does not commit further mistakes, it is essential to file a report with the state medical board. A report is not a lawsuit but it could be an effective first step towards starting the malpractice claim. It is best to consult an Syracuse malpractice attorney prior to making any report or other document.

Summons

As part of the legal procedure, the summons or claim form is filed with the court, and then delivered to the defendant doctor. A lawyer appointed by the court will examine the documents. If it appears that there could be a malpractice claim and the lawyer files an affidavit, along with a complaint to the court, detailing the alleged error.

The next step in the legal process is to obtain evidence through pretrial discovery. This includes making requests for evidence like hospital billing and clinic notes, as well as taking the deposition of the doctor who is defending the case. Attorneys will then inquire with the defendant under oath as to his or her knowledge regarding the case.

The plaintiff's attorney will use this information to establish the elements of a medical malpractice case in court. The elements of a medical malpractice claim include the existence of an obligation on the part of the physician to provide medical and treatment to patients, the doctor's breach of this duty as well as a causal connection between the breach and injury or death of the patient and enough damages to warrant a monetary award.

Discovery

During the discovery phase, both parties are allowed to request evidence pertinent to their case. This includes medical records before and after the mishaps, information about experts and tax returns, copies or other documentation relating to expenses out of pocket that the plaintiff claims to have incurred, and also the names and contact details for witnesses who are expected to testify at trial.

Most states have a statute of limitations which allows injured patients a certain number of years after a medical mishap to pursue a lawsuit. The time limit is usually set by law of the state, and they are subject to rules referred to as the "discovery rule."

To win a medical malpractice lawsuit, the injured patient has to demonstrate that the negligence of the doctor resulted in specific harm 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 questions and answer sessions conducted in the presence of a court reporter who records both the questions as well as the answers. The deposition is a part of the discovery process, which is about gathering information that can be used in a trial.

Depositions permit attorneys to ask witnesses, usually doctors, a series of questions. When a doctor is deposed, they must answer all questions in a straight and honest manner under an oath. Usually, the physician is asked questions by an attorney and later cross-examined by a second attorney. This is an important stage of the trial and requires the complete attention and focus of the physician.

A deposition is a great way for attorneys to get an extensive background on the doctor, including his or his education, training and experience. This information is critical to proving that the physician breached the standard of care in your case and that the breach resulted in injury. Physicians who have been trained in this field will typically declare that they have experience performing specific procedures and techniques that may be relevant to a particular medical malpractice case.

Trial

Your lawyer will file a complaint with the court and issue a summons. This initiates a legal process of disclosure, referred to as discovery where you and your doctor's team work together to gather information to prove your case. This usually includes medical records and the testimony of experts.

To prove malpractice it is essential to establish that your doctor's actions were not in line with the standard of care. Your lawyer must convince jurors that it is more likely than not your injuries would not have occurred if your doctor acted according to the standard of care. Your doctor's lawyers will present defenses that contradict the evidence presented by your attorney.

Despite the myth that doctors are the target of fraudulent malpractice claims years of evidence confirm that juries make reasonable assessments of damages and negligence, and that juries tend to be skeptical of excessive award amounts. The vast majority malpractice cases are settled before trial.