How to File a Medical Malpractice Lawsuit

Many medical malpractice cases require a lot of time and resources from both doctors and attorneys. This can include physician hours and work product, attorney time court costs and expert witness fees and countless other expenses.

A medical malpractice case can be filed in the event that a healthcare professional has been negligent or has acted in a manner that is illegal or committed an error or failed to act. Injury victims may seek compensatory damages, which could include actual economic loss such as future and past medical bills as well as non-economic expenses like pain and suffering.

Complaint

A medical malpractice case is complex and requires a solid proof of the claim to be successful. The patient who has been injured (or their attorney if they've lost their claim) must prove each of the following legal elements of the claim:

The defendant breached the duty. The defendant violated that obligation. The breach directly caused injury to plaintiff. This element of the malpractice claim is referred to as "causation." A breach of the standard of care itself does not cause an injury, but it must be shown that the breach directly caused the injury and was the direct cause of the injury.

In order to protect the rights of a patient, and to ensure that a physician doesn't commit any further mistakes, it is essential to file a complaint with the state medical board. However, filing a complaint is not a way to start an action, and is often only a first step in moving the malpractice claim. It is best to consult an Syracuse malpractice attorney prior to filing any report or document.

Summons

As part of the legal process an order or claim form is filed with the court and handed to the defendant doctor. A lawyer appointed by the court will review these documents. If it appears that there is a malpractice case the lawyer will file an affidavit, along with a complaint to the court, describing the possible error.

The next step in the legal process is to obtain evidence through pretrial discovery. This involves submitting requests for documentation such as hospital invoices and notes from the clinic, and then taking the defendant physician's deposition in which attorneys ask the defendant about his or his knowledge of the situation under an oath.

The attorney representing the plaintiff will use this information to prove the elements of a claim for medical malpractice during trial. The elements of a medical malpractice case include the existence of an obligation on the part of the physician to provide treatment and care to patients, the doctor's failure to fulfill 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 phase during the discovery phase, both parties are able to request any evidence relevant to their case. This includes medical records prior to and after the an alleged malpractice, details about experts and tax returns, copies or other documents relating to expenses out of pocket that the plaintiff claims were incurred, as well as the names and contact information for any witnesses who will be called to testify in the trial.

The majority of states have a statute of limitation which allows injured patients the time period of a certain amount of years after a medical mishap to make a claim. The length of time is typically determined by the law of the state and are subject to a rule known as the "discovery rule."

To prevail in a medical malpractice lawsuit, the injured patient must prove that the doctor's negligence resulted in specific harm like physical pain or loss of income. They must also prove causation, i.e. that the negligent treatment resulted in their injury or death.

Deposition

Depositions are question-and-answer sessions that take place in the presence a court reporter, who will record the questions as in the responses. The deposition is a part of the discovery process, in which parties collect information to use in a trial.

Attorneys may ask a series of questions to witnesses, typically doctors. When a physician is deposed and questioned, they must answer all questions honestly under oath. Typically, the doctor is asked questions by one attorney, and then cross-examined by another attorney. This is a crucial stage of the process and requires the full concentration and attention of the doctor.

Depositions are a great method for lawyers to obtain an in-depth background on the doctor, including his or her training, education and experience. This information is essential to proving the doctor breached the standard of care you expect and caused you harm. For example, physicians who have received training in the field of malpractice cases usually affirm that they have extensive experience in the execution of certain procedures and techniques that could be relevant to a specific medical-malpractice claim.

Trial

A lawsuit in a civil court is launched when your lawyer is able to file a complaint as well as a summons with the court of your choice. The process begins with a legal requirement of disclosure, referred to as discovery where you and your physician's team collaborate to collect information to prove your case. This evidence usually comprises medical records and expert witness testimony.

The purpose of proving malpractice is to prove that your physician's actions fell short of the standard of care. Your lawyer must convince jurors that it is more likely than not that your injuries wouldn't have occurred if your doctor acted according to the standard of care. The attorneys for your doctor will present defenses that contradict the evidence provided by your attorney.

Despite the myth that doctors are targets for false claims of malpractice the decades of evidence show that jury verdicts reflect fair estimates of negligence and damages, and that juries tend to be skeptical of award amounts that are exaggerated. The vast majority of malpractice cases are settled prior to trial.