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How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits can be a little complicated. There are certain guidelines to follow, including the time frame within which the lawsuit can be filed.

In addition to showing negligence, the claimant must also prove that the actions of the doctor resulted in losses and injuries. This will require medical and hospital documents.

Complaint

Once your attorney's investigation has found evidence that fraud occurred, the attorney will file a lawsuit in court, along with summons. The complaint will identify the defendants in your case and clearly states the allegations that you are making against them.

Malpractice claims are based on the belief that a physician or nurse or any other healthcare provider owes a patient a standard of treatment. This standard is defined as the amount of competence and care that a reasonable medical professional who has similar training would apply in similar circumstances. Your legal team needs to show that your doctor violated this standard and caused injuries to which you have suffered damages that are quantifiable.

A doctor's standard of care is often a matter of opinion and is difficult to prove. This is why it's crucial to choose a law firm with access to expert witnesses who can provide testimony about the medical field and what a reasonable professional in your situation would have done.

It's not only doctors who commit medical mistakes; hospital staff members, like nurses and anesthesiologists can be liable for malpractice. This is especially true for emergency room staff where mistakes are made due to a busy atmosphere and overworked personnel. Your attorney may be able to get testimony from experts in the emergency room who can help demonstrate what could have been done and why your doctor's actions did not meet the standards.

Discovery

During the discovery process your lawyer will collect and analyze evidence that could support a malpractice case. This includes medical documents, witness statements, expert testimony, and more. The legal team of the other side may also be able to request this information from you and your attorney. This is done by interrogatories or requests for documents. Certain materials could be protected and confidential because of privacy laws, like HIPAA's Privacy Rule.

It is also necessary to prove that your injury was caused by the negligence of the doctor. This is the most difficult component of a case involving medical negligence, as it requires expert testimony to back your claim.

Your lawyer will also call any witnesses that can support that the doctor's actions were negligent. This can include assistants, nurses, radiologists, dentists and other personnel who were involved in your treatment. Your lawyer will be proficient at taking strong and effective depositions to convince these witnesses to admit that the doctor's negligence was not their fault.

The majority of lawsuits are resolved or settled before they reach the trial stage. For medical malpractice cases it is a common practice because the cost of going to trial can be quite expensive. Once the facts of your case are established, a settlement could be negotiated between you and the insurance company for the doctor. If a settlement isn't attainable the case will go to trial.

Trial

Your attorney will file a complaint following an initial investigation. If they conclude that you have a solid case for malpractice, they will file it. This will clearly state your allegations and be served on the defendant along with a summons.

The next stage is discovery. This involves the exchange of medical records as well as depositions of witnesses. Your lawyer will use these documents to prove the doctor's breach of standard of care. The objective is to prove that the error was caused by the negligence of the doctor, and caused damage.

Your medical malpractice lawyer will also collaborate with one or more expert witnesses to prove your claim. They will be provided with medical records and specific information regarding your case to prepare for their depositions and testimonies. They can also assist in preparing your case for trial.

As part of the preparation for trial your lawyer will start settlement negotiations with the defense. The process can take many years. In this time, you are recovering from your injuries and determining the extent of your losses. When you can, it's beneficial for everyone to avoid litigation and settle outside of court. Your lawyer will carefully weigh the advantages of a settlement offer against your current and long-term recovery. If the settlement seems reasonable your lawyer will convince you to accept it.

Damages

During the discovery phase, plaintiffs will need to show that their losses are significant and that negligence on the part of the defendant has contributed to the damages. For example, if the doctor did not inform the patient that the surgery had a 30% chance of losing a limb and the procedure was carried out perfectly but the patient lost their arm, the medical professional may be liable for malpractice.

A victim may also show that a competent lawyer could have prevented or minimized their financial loss. This is commonly referred to as the "but for" test. It is also required to prove that the plaintiff has incurred costs to pursue a legal claim, which is greater than the amount sought in compensation.

Our medical malpractice lawyers can explain the different types of damages that can be attained in a malpractice case including past, present and future medical expenses and lost income, as well as suffering and other economic and non-economic losses. The more money you are awarded the more serious the damage. A verdict that is successful could be challenged by an appeal. So, settling out of court may be a beneficial option for some clients. It can save money as well as time on court costs. It also eliminates the possibility of a jury making a decision based on emotion rather than fact.