How to File a Medical Malpractice Lawsuit

Lawyers and doctors must invest significant time and money in many medical malpractice lawsuits. This investment includes physician hours and work product as well as attorney time, court costs, expert witness fees, and many other costs.

A medical malpractice attorneys malpractice claim may be filed when a healthcare professional is negligent, has committed misconduct, made an error, or failed to act. Plaintiffs seeking compensation for injuries can file for economic losses, including past or future medical expenses as well as non-monetary damages, like pain and discomfort.

Complaint

A medical malpractice suit has many moving parts and requires reliable evidence to prevail. The injured patient or their lawyer in the event that the patient has passed away, must demonstrate each of these legal elements:

A hospital or doctor was required to act in accordance with the standard of care applicable. The defendant violated this duty. The breach directly caused injury to plaintiff. This is referred to as "cause". A breach of a standard of care will not necessarily cause injury. It must be shown that it caused the injury directly and was the primary cause for the injury.

To protect the rights of patients, and to ensure that a doctor does not commit further wrongdoing, it's necessary to file a claim with the state medical malpractice law firms board. A report is not a lawsuit, but it could be the first step to starting the malpractice claim. It is often best to consult a Syracuse lawyer for malpractice before 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 process. A lawyer appointed by the court for plaintiff will review the documents and, if it appears that there could be an issue with malpractice and they file a complaint along with an affidavit with the court describing the medical error that they believe to have committed.

The next step is to gather evidence by pretrial disclosure. This involves submitting requests for documentation such as hospital invoices and clinic notes and taking the deposition of the defendant's physician where lawyers question the defendant on his or his knowledge of the case under an oath.

The information provided will be used by the plaintiff's lawyer to prove elements of a medical malpractice claim during trial. The elements of a medical malpractice claim include the existence of a duty on the part of the physician to provide care and treatments to patients, the doctor's failure to fulfill this duty and a causal link between the breach and injury or death of the patient and a sufficient amount in damages to warrant a monetary compensation award.

Discovery

During the discovery process, both sides are able to request and receive evidence that is relevant to the case. This includes medical records before and after the alleged malpractice, information about expert witnesses and tax returns or other documentation that pertains to expenses out of pocket that the plaintiff claims to have incurred, and the names and contact details for any witnesses who will be present at trial.

Most states have a statute of limitations that gives injured people some time after a medical error to make a claim. These time limits are typically determined by state law, and are subject to rules known as the "discovery rule."

To prevail in a medical malpractice lawsuit, the patient must show that the doctor's negligence caused specific harm, like physical pain or loss of income. They must also prove causation -which means that the negligent treatment was the sole reason for their injury or death.

Deposition

Depositions are question-and-answer sessions which take place in the presence a court reporter, who records the questions as well and the answers. Depositions are part of the discovery process in which the parties collect evidence to use in a trial.

Attorneys can ask a series questions to witnesses, usually doctors. If a physician is interrogated to testify, he or she must answer the questions truthfully under oath. Typically, the doctor is first asked questions by an attorney, and then the attorney is cross-examined by another attorney. This is an essential stage of the trial and requires the complete concentration and attention of the doctor.

Depositions allow lawyers to gain a thorough understanding of the doctor's qualifications in relation to his or their education, training and experience. This information is essential for showing that the doctor violated the standard of care in your situation and that the breach directly resulted in injury. For instance, doctors who have received training in the field of malpractice cases typically will declare that they have a vast experience in performing certain procedures and practices that could be relevant to a particular medical malpractice case.

Trial

Your lawyer will submit a complaint to the court, along with a summons. This initiates the process of legal disclosure, also known as discovery. You and your doctor's team will work together to gather evidence to prove your case. The evidence typically comprises medical records and expert witness testimony.

To prove that you committed a crime, you must establish that your doctor's actions were below the standard of care. Your lawyer must convince a jury that it is more likely than not that your injuries could not have occurred had your doctor acted in accordance with the standard of care. Your doctor's lawyers will present defenses that contradict the evidence provided by your attorney.

Despite folklore suggesting that doctors are targets for frivolous malpractice claims decades of research on the subject shows that jury verdicts tend to reflect reasonable assessment of damages and negligence, and that juries are skeptical of inflated damage awards. The majority of malpractice cases are settled prior to trial.

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