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How to File a Medical Malpractice Lawsuit

Lawyers and doctors must invest a lot of time and money in a variety of medical malpractice lawsuits. This investment includes attorney time court fees as well as expert witness fees and other expenses.

An injury resulting from medical professional's negligence, incompetence, error or omission can give rise to a medical malpractice claim. The injured party may be able to seek compensation damages, which could include actual economic loss, such as the future and past medical bills, as well as noneconomic damages like pain and suffering.

Complaint

A medical malpractice lawsuit is a complex one and requires a solid proof of the claim for success. The injured party (or their attorney if they've passed away) must demonstrate each of the following legal aspects of the claim:

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

To ensure the rights of a patient and to ensure that a doctor does not commit further malpractice, it is necessary to file a claim with the state medical board. A report is not a lawsuit but it could be an effective first step towards beginning the process of bringing a malpractice claim. It is generally recommended 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 the court and is sent to the doctor who is defendant as part of the legal procedure. A court-appointed lawyer for the plaintiff will review the documents and, if they believe that there could be a case of malpractice, they will file an affidavit and complaint before the court describing the medical malpractice law firms error that is claimed to be the cause.

The next step is obtaining evidence by pretrial disclosure. This includes making requests for evidence, such as hospital billing and notes from clinics, and taking the deposition of the defendant physician. Attorneys will then inquire with the defendant on oath about the details of the case.

The attorney for the plaintiff will use this evidence to prove the elements of a medical negligence claim in court. The elements of a medical malpractice case include the existence of an obligation on the part of the doctor to provide medical and treatment to patients, the physician's breach of this duty and 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 where both parties are permitted to request evidence that is relevant to their case. This includes medical records prior to and following the mishaps, information about expert witnesses and tax returns, copies or other documentation that pertains to expenses out of pocket that the plaintiff claims they incurred, and the names and contact information for any witnesses who be present at trial.

The majority of states have a statute of limitations which allows injured patients an amount of time after a medical error to pursue a lawsuit. Those time limits are usually set by law in the state, and they are subject to rules known as the "discovery rule."

In order to win a medical malpractice lawsuit the injured person must prove that a physician's negligence caused a specific injury, such as physical pain or loss of income. They must also prove causation, i.e. that the negligent treatment caused their injury or death.

Deposition

Depositions are question-and-answer sessions that are conducted in the presence of a court reporter who takes notes of the questions as well as the answers. Depositions are part of the process of discovery, which is the process of gathering evidence that can be used in the trial.

Depositions allow attorneys to ask witnesses, usually doctors to answer a series of questions. When a physician is questioned by a lawyer, the doctor must answer the questions truthfully under oath. Usually the physician is asked questions by an attorney and then cross-examined by another attorney. This is a crucial stage of the case and requires the complete attention and focus of the physician.

A deposition can help attorneys gain a thorough understanding of the doctor's background in terms of his or the training, education and experience. This information is essential to proving that the physician breached the standard of care in your particular case and that the breach directly caused injury to you. For example, physicians who have trained in the area of malpractice cases will typically declare that they have a vast experience in the execution of certain procedures and techniques that may be relevant to a specific medical malpractice claim.

Trial

Your lawyer will make a complaint to the court and will issue a summons. This initiates the legal disclosure process known as discovery. Your doctor and your staff will work together in order to gather evidence that can prove your case. This evidence typically includes medical records and the testimony of experts.

The goal of proving malpractice is to prove that your physician's actions were not in line with the standard of care. Your lawyer must convince the jury that your injuries could be prevented if the doctor had acted in accordance with the standard of care. Your doctor's lawyers will present arguments that do not agree with the evidence provided by your attorney.

Despite the common belief that doctors are targets for unsubstantiated claims of malpractice, decades of empirical evidence demonstrate that jury verdicts reflect reasonable estimates of negligence and damages, and that juries tend to be skeptical of excessive award amounts. The majority of malpractice cases settle before trial.