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How to File a Medical Malpractice Lawsuit

Both lawyers and physicians must invest considerable time and funds in many medical malpractice lawsuits. This can include physician hours and work product attorneys' time, court costs and expert witness fees and countless other expenses.

A serious injury that is the result of medical malpractice lawyer professional's negligence, misconduct, error or omission can give rise to a medical malpractice claim. Victims of injury may seek compensation damages, including the actual economic loss such as past and future medical bills as well as non-economic expenses like pain and suffering.

Complaint

A medical malpractice case is complex and requires proof of credibility for success. The injured patient (or their attorney if they've died) must be able to prove each of the following legal elements of the claim:

That a hospital or doctor was required to follow the standards of care in force. The defendant erred in his duty. The breach directly caused injury to the plaintiff. This element of a malpractice claim is known as "causation." A breach of the standard of care itself is not a cause of injury, but it has to be proved that the breach directly caused the injury and was the main cause of the injury.

It is usually necessary to file a formal complaint with a state medical body in order to protect the rights of the patient and ensure that the doctor doesn't commit any further malpractice. A report is not a lawsuit, however, it is a good first step in getting the malpractice claim started. It is recommended to speak with a Syracuse malpractice lawyer prior to filing any report or document.

Summons

As part of the legal procedure, a summons or claim form is filed with the court, and then delivered to the defendant physician. A lawyer appointed by the court for plaintiff will review the documents and, if they believe that there may be an incident of malpractice, they will submit a complaint and an affidavit with the court, describing the medical error that is claimed to be the cause.

The next step is to obtain evidence by pretrial disclosure. This involves submitting requests to document like hospital billing information and notes from the clinic, and then taking the deposition of the defendant's physician in which attorneys ask the defendant on his or her knowledge of the case under the oath.

The plaintiff's attorney will use this evidence to prove the elements of a medical malpractice case at trial. These include the existence of a duty on the doctor's part to provide treatment and treatment to patients; the doctor's violation of this duty; a causal relationship between the breach and the patient's injury or death; and a sufficient amount of damages that result from the death or injury to warrant a monetary award for compensation.

Discovery

During the discovery phase, both parties are allowed to request evidence that is relevant to their case. This includes medical records prior to and following the alleged malpractice, information about expert witnesses, copies of tax returns or other documents relating to expenses out of pocket that the plaintiff claims they incurred, as well as the names and contact information for witnesses who are expected to be called to testify in the trial.

Most states have a statute of limitations that gives injured people an amount of time after a medical error to bring a lawsuit. The time limit is set by state laws and are subject to a law known as the "discovery rules."

In order to win a medical malpractice claim the patient who was injured must prove that a doctor's negligence caused a specific harm 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 question and answer sessions that are conducted in front of an official court reporter who records both the questions and the responses. The deposition is a part of the process of discovery, which involves gathering information that can be used in the trial.

Depositions allow attorneys to question witnesses, often doctors to answer a set of questions. When a physician is deposed and questioned, they must answer all questions in a straight and honest manner under an oath. Usually, the physician is asked questions by one attorney, and then cross-examined by a different attorney. This is a crucial phase in the case and the physician has to be attentive to the case.

A deposition is an excellent way for attorneys to obtain an extensive background on the doctor, including the doctor's education, training and experience. This information is crucial to proving that the physician breached the standards of care in your situation and that the breach directly resulted in injury. Physicians who have been trained in this field will typically affirm that they have years of experience with certain techniques and procedures that could be relevant to your particular medical-malpractice case.

Trial

A lawsuit in a civil court is officially initiated when your lawyer lodges a complaint and a summons with the court of your choice. This begins the process of legal disclosure known as discovery. Your doctor and your team will collaborate to collect evidence to support your case. The evidence usually consists of medical records as well as testimony from expert witnesses.

The goal of proving malpractice is to prove that the actions of your doctor were not in line with the standard of care. Your lawyer must convince the jury that your injuries would be avoided if your doctor had followed the standard of care. Your doctor's lawyers will argue arguments that do not agree with the evidence presented by your lawyer.

Despite the belief that doctors are targets for frivolous malpractice claims decades of empirical research proves that jury verdicts tend to reflect fair evaluations of damages and negligence and juries are skeptical of excessive damage awards. The vast majority malpractice cases are settled before trial.