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How to File a Medical Malpractice Lawsuit

Both physicians and lawyers must invest considerable time and funds in many medical malpractice lawsuits. This investment covers physician time and work product attorneys' time court costs as well as expert witness fees and countless other expenses.

An injury caused by a healthcare professional's negligence, misconduct, error or omission can result in a medical malpractice claim. The injured party may be able to seek compensation damages, which include economic loss, such as the future and past medical bills as well as non-economic losses such as pain and suffering.

Complaint

A medical malpractice lawsuit has many moving parts, and requires evidence that is credible evidence to be successful. The injured person or their lawyer if the patient has died must prove each of these legal elements:

A hospital or doctor was required to act according to the standard of care applicable. The defendant failed to meet this duty. The breach directly caused injury to the plaintiff. This element is known as "cause". A breach of a standard of care doesn't necessarily cause injury. It must be proven that it caused the injury directly and was the proximate reason for the injury.

It is usually necessary to file a complaint with a state medical board in order to protect the rights of the patient and to ensure that the doctor doesn't commit additional negligence. However, filing a claim is not the start of an action, and is often only a first step in moving the malpractice claim. It is recommended to talk with an Syracuse malpractice attorney before filing any report or other document.

Summons

A summons or claim is filed in the court and is sent to the defendant doctor as part of the legal procedure. A lawyer appointed by the court on behalf of the plaintiff will review the documents and, if it appears that there is an incident of malpractice then they will file an affidavit and complaint with the court, describing the medical error that they believe to have committed.

The next step is obtaining evidence by pretrial disclosure. This involves making requests for evidence including hospital billing or clinic notes, and taking the deposition of the defendant's doctor. Attorneys will then inquire with the defendant under oath regarding his or her knowledge of the case.

This information will be utilized by the lawyer representing the plaintiff to prove elements of a claim for medical negligence during trial. The elements of a medical malpractice claim include the existence of a duty on the part of the physician to provide care and treatments to patients, the physician's breach of this duty, a causal link between the breach and the injury or death of the patient, and an amount of damages sufficient to warrant a monetary compensation award.

Discovery

During the discovery process, both sides are entitled to request and receive evidence that is relevant to the case. This includes medical records prior to and following the suspected malpractice, information on experts and tax returns, copies or other documentation related to out-of-pocket expenses which the plaintiff claims were incurred and also the names and contact details for any witnesses who will testify at trial.

The majority of states have a statute of limitations which limits the amount of time a patient has to seek compensation for injuries caused by medical error. These time limits are typically set by law in the state, and are subject to rules known as the "discovery rule."

In order to win a medical malpractice lawsuit, an injured patient must prove that the doctor's negligence caused a specific injury for example, physical pain or loss of income. They must also prove causation i.e. that negligence caused their death or injury.

Deposition

Depositions are questions-and-answer sessions that are conducted in the presence a court reporter, who is able to record the questions as as the answers. The deposition is an element of the process of discovery, which involves gathering information that can be used in the course of a trial.

Depositions permit attorneys to ask witnesses, usually doctors to answer a series of questions. When a physician is deposed they must answer all questions truthfully 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 in the trial, and the physician must focus on it with complete attention.

Depositions are a great way for attorneys to obtain a detailed background of the doctor, including his or their education, training, and experience. This information is crucial for showing that the doctor violated your standard of care and that this breach resulted in injury to you. For instance, doctors who have completed training in the area of malpractice cases usually affirm that they have extensive experience performing specific procedures and techniques that may be relevant to a specific medical malpractice case.

Trial

A civil court is officially initiated when your lawyer files a complaint and summons with the appropriate court. This is the beginning of the legal disclosure process known as discovery. Your doctor and your team will work together in order to gather evidence that can prove your case. This evidence usually includes medical records as well as testimony of an expert witness.

To prove that you committed a crime you must prove that your doctor's actions were not in accordance with the standards of care. Your lawyer must convince the jury that your injuries would have been prevented if your doctor had acted in accordance with the standard of care. Your doctor's lawyers will present defenses that go against the evidence presented by your attorney.

Despite the myth that doctors are the target of fraudulent malpractice claims, decades of empirical evidence show that jury verdicts reflect fair assessment of the severity of the damage and negligence, and that juries are skeptical of award amounts that are exaggerated. The vast majority malpractice cases are settled prior to trial.