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How to File a Medical Malpractice Lawsuit

Both lawyers and physicians must invest significant time and money in many medical malpractice lawsuits. This includes doctor hours and work product and attorney time court costs, expert witness fees, and many other costs.

An injury caused by medical professional's negligence, incompetence, error or omission could result in a medical malpractice claim. Victims of injury can seek compensation for economic losses, like future or past medical expenses and also non-economic injuries, such as pain and discomfort.

Complaint

A medical malpractice lawyers malpractice lawsuit is made up of many moving parts, and requires evidence that is credible evidence to win. The patient who has been injured or their attorney in the event that the patient has passed away must prove each of these legal elements:

The defendant breached that obligation. The defendant breached this duty. The breach directly caused injury to the plaintiff. This element of a malpractice claim is called "causation." A breach of the standard of care does not cause an injury, but it has to be proven that the breach directly caused the injury and was the main cause of the injury.

It is often required to file a complaint to a state medical board to protect the rights of the patient and ensure that the doctor does not commit additional errors. A report is not a lawsuit however, it is a good first step in beginning the process of bringing a malpractice claim. It is often best to consult a Syracuse attorney for malpractice prior to filing a report, or any other type of document.

Summons

A summons or claim is filed in a courtroom and sent to the doctor who is defendant as part of the legal process. A lawyer for the plaintiff appointed by the court will go through the documents. If it appears there is a malpractice case the lawyer will file an affidavit and complaint with the court, describing the suspected error.

The next step is to obtain evidence by pretrial disclosure. This includes filing requests for documents such as hospital bills and notes from clinics, and taking depositions of the defendant's physician. Attorneys will then inquire with the defendant under oath regarding his or her knowledge regarding the case.

The plaintiff's attorney will use this information to establish the elements of a medical negligence claim during trial. This includes the existence of a duty on the doctor's part to provide treatment and treatment to patients; the physician's violation of this duty; an causal connection between the breach and the patient's injury or death and a sufficient amount of damages that result from the injury or death to justly award monetary compensation.

Discovery

During the process of discovery both sides are able to ask for and receive evidence that is relevant to the case. This includes medical records before and after the incident of suspected malpractice, information on experts, copies of tax returns or other documents relating to out-of-pocket expenses which the plaintiff claims were incurred, as well as the names and contact details for any witnesses who testify at trial.

Most states have a statute of limitations that gives injured people some time after a medical error to file a lawsuit. The time limit is set by state laws and are subject to a rule called the "discovery rules."

To win a Medical malpractice attorneys malpractice lawsuit, a patient who has been injured has to demonstrate that the negligence of the doctor resulted in a specific injury, like physical pain or loss of income. They must also prove causation i.e. that the negligent treatment led to their injury or death.

Deposition

Depositions are essentially question-and-answer meetings that take place in the presence a court reporter, who takes notes of the questions as well and the answers. The deposition is an element of the discovery process, which is about gathering information that can be used in a trial.

Attorneys can ask a series questions to witnesses, mostly doctors. When a doctor is questioned, they must answer all questions in an honest and open manner under the oath. Usually the physician is asked questions by one attorney and is then cross-examined in the presence of another attorney. This is an important stage of the case and requires the full concentration and attention of the physician.

A deposition is an excellent way for attorneys to get an in-depth background on the doctor, including his or her training, education and experience. This information is crucial for convincing the court that the doctor did not adhere to your standards of care and caused you injury. For example, physicians who have trained in the area of malpractice cases will typically be able to prove that they have a lot of experience performing certain procedures and practices that could be relevant to a particular medical malpractice case.

Trial

Your lawyer will make a complaint to the court and will issue a summons. This triggers a legal procedure of disclosure known as discovery where you and your physician's team work together to gather evidence to support your case. This usually includes medical records and testimony from expert witnesses.

To prove malpractice it is necessary to prove that the doctor's actions did not meet the standards of care. Your lawyer must convince jurors that it is more likely than not your injuries would not have occurred if your physician acted according to the standard of care. Your doctor's lawyers will present arguments that do not agree with the evidence provided by your attorney.

Despite folklore suggesting that doctors are targets for malpractice claims that are not meritorious, decades of empirical research proves that jury verdicts typically reflect reasonable assessment of damages and negligence and juries are skeptical of excessive damage awards. The majority of malpractice cases settle before trial.