How to File a Medical Malpractice Lawsuit

Many medical malpractice cases require a lot of time and resources from both physicians and attorneys. This can include attorney time court fees, expert witness fees and other expenses.

An injury caused by medical 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 medical bills, as well as noneconomic damages, like discomfort and pain.

Complaint

A medical malpractice case has many moving parts and requires a solid evidence to win. The injured patient or their attorney, if the patient has died, must show each of these legal elements:

The defendant breached the obligation. The defendant violated this duty. The breach directly caused injury for the plaintiff. This is referred to as "cause". A breach of a standard of care will not cause injury on its own. It must be proven that it directly caused the injury and was the proximate reason for the injury.

To safeguard the rights of a patient, and to ensure that a doctor does not continue to commit malpractice, it is necessary to file a report with the state medical board. A report is not a lawsuit, but it can be an excellent first step in initiating the malpractice lawsuit. It is recommended to talk with a Syracuse malpractice lawyer prior to filing any report or other document.

Summons

As part of the legal process an order or claim form is filed with the court, and then delivered to the defendant doctor. A lawyer appointed by the court on behalf of the plaintiff will then go over these documents and, if they believe that there could be an incident of malpractice, they will submit a complaint and an affidavit to the court detailing the medical error that they believe to have committed.

The next step is to gather evidence by pretrial disclosure. This involves making requests for evidence like hospital billing and clinic notes, and taking the deposition of the doctor who is defending the case. Attorneys will then inquire with the defendant under oath about his or her knowledge of the case.

This information will be used by the lawyer for the plaintiff to establish the elements of an action for medical malpractice in the course of trial. The elements of a medical malpractice claim include the existence of an obligation on the part of the doctor to provide medical and treatment to patients, the physician's violation of this duty and a causal connection 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 able to seek and receive evidence pertinent to the case. This includes medical records prior to and after an incident of negligence, details about experts and tax returns, copies of the tax return or other documents relating to out-of-pocket expenses that the plaintiff claims to have paid, as well as the names and contact details of any witnesses who will be appearing during the trial.

Most states have a statute-of-limitations that limit the length of time that a patient is allowed to pursue a lawsuit after being injured due to a medical malpractice attorneys mistake. The length of time is determined by state laws and are subject to a rule known as the "discovery rules."

To prevail in a medical malpractice claim an injured victim must show that a doctor's negligence caused harm to a specific person that is 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 sessions of question and answer that take place in presence of a court reporter who is able to record the questions as as the answers. The deposition is part of the discovery process, which consists of gathering information that can be used in the trial.

Attorneys can pose a number of questions to witnesses, mostly doctors. When a doctor is deposed and questioned, they must answer all questions in an honest and open manner under an oath. Typically, the doctor is first questioned by an attorney and later the attorney is cross-examined by another attorney. This is an important stage of the process and requires the full concentration and attention of the physician.

Depositions allow lawyers to gain a thorough understanding of the doctor in terms of his or her education, training and experience. This information is crucial to 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 typically will declare that they have a vast experience in the execution of certain procedures and methods that may be relevant to a particular medical malpractice case.

Trial

A lawsuit in a civil court is launched when your lawyer files a complaint and summons with the appropriate court. This begins a legal process of disclosure, also known as discovery, where you and your doctor's team work together to gather information to prove your case. This usually includes medical records and testimony from expert witnesses.

The goal of proving malpractice is to establish that your physician's actions fell short of the standard of care. Your lawyer must convince the jury that your injuries could have been prevented if your doctor had acted in accordance with the standard of care. Your doctor's lawyer will offer defenses that go against the evidence presented by your attorney.

Despite the common belief that doctors are the target of false claims of malpractice, decades of empirical evidence shows that jury verdicts reflect fair assessments of damages and negligence and that juries tend to be skeptical of award amounts that are exaggerated. The vast majority of malpractice cases settle before trial.