How to File a Medical Malpractice Lawsuit

Many medical malpractice lawsuits require significant time and resources from both physicians and attorneys. This investment includes physician hours and work product attorneys' time, court costs as well as expert witness fees and countless other expenses.

A medical malpractice lawsuit can be filed in the event that a healthcare professional was negligent or has committed misconduct or committed a mistake or acted in a way that was not. Plaintiffs seeking compensation for injuries can file for economic losses, like past or future medical bills and also non-economic injuries, such as discomfort and pain.

Complaint

A medical malpractice case has many moving parts and requires a solid evidence to be successful. The patient who has been injured or their lawyer when the patient has passed away must show each of these legal elements:

The defendant breached the duty. The defendant violated this duty. That the breach directly caused injury to the plaintiff. This aspect of the malpractice claim is referred to as "causation." A breach of the standard of care itself does not cause injury, but it has to be shown that the breach directly caused the injury and was the primary reason for the injury.

To safeguard a patient's rights, and to ensure that a doctor does not commit further mistakes, it is essential to file a claim with the state medical board. A report is not a lawsuit however, it is the first step to getting the malpractice claim started. It is advisable to speak with a Syracuse malpractice lawyer prior to filing any report or other document.

Summons

A summons or claim is filed in court and then sent to the defendant doctor as part of the legal procedure. A plaintiff's lawyer appointed by the court will examine the documents. If it appears that there is a malpractice case the lawyer is required to file an affidavit and complaint with the court, describing the claimed mistake.

The next step is obtaining evidence by pretrial disclosure. This involves making requests for evidence including hospital billing and notes from clinics, and taking the deposition of the defendant's physician. Attorneys will then ask the defendant under oath as to their knowledge of the case.

The attorney representing the plaintiff will use this evidence to prove the elements of a medical negligence claim at trial. The elements of a medical malpractice claim include the existence of a duty on the part of the physician to provide medical and treatment to patients, the physician's infraction of this obligation and a causal connection between the breach and injury or death of the patient, and enough damages to warrant a monetary award.

Discovery

During the process of discovery, each side is entitled to ask for and receive evidence that is relevant to the case. This includes medical malpractice attorney records that were taken prior to and after an incident of negligence, details about experts and tax returns or other documentation related to out-of-pocket expenses that the plaintiff claims have been incurred, and the names and contact details of witnesses who will be appearing at trial.

The majority of states have a statute of limitation which allows injured patients an amount of time after an injury or medical mistake to pursue a lawsuit. The time limit is set by the laws of the state and are subject to a rule known as the "discovery rules."

To prevail in a medical malpractice lawsuit, an injured patient must prove that the negligence of a doctor caused specific harm, like 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 conducted in the presence of an official court reporter who records both the questions and the responses. Depositions are a part of the discovery process in which the parties gather information to use in the trial.

Attorneys can ask a series questions to witnesses, typically doctors. When a doctor is questioned they must answer all questions in an honest and open manner under the oath. Usually the physician is asked questions by an attorney and is then cross-examined in the presence of another attorney. This is a crucial phase of the process and requires the complete attention and focus of the doctor.

A deposition can help attorneys obtain a detailed background on the doctor in terms of his or his education, training, and experience. This information is critical to prove that the doctor did not meet the standard of care in your situation and that the breach directly caused injury to you. For instance, doctors who have completed training in the field of malpractice cases typically will be able to prove that they have a lot of knowledge of certain procedures and practices that may be relevant to a specific medical malpractice case.

Trial

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

The purpose of proving malpractice is to establish that the actions of your doctor fell short of the standard of care. Your lawyer must convince the jury that your injuries would have been avoided if your doctor had followed the standards of care. The lawyers for your doctor medical malpractice will present defenses that go against the evidence presented by your lawyer.

Despite the common belief that doctors are the target of unsubstantiated claims of malpractice years of evidence demonstrate that jury verdicts are based on reasonable assessment of the severity of the damage and negligence, and that juries are skeptical of excessive award amounts. The majority of malpractice cases are settled prior to trial.