How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits can be very complicated. There are certain guidelines that must be met including a specified time period in which the suit can be filed.

In addition to showing negligence, the claimant must show that the actions of the doctor resulted in losses and injuries. This will require hospital and medical documents.

Complaint

If your attorney's probe has found evidence that fraud occurred, the attorney will file a complaint with the court and issue summons. The complaint names the defendants in the case and outlines the allegations you are making against them.

Malpractice claims are based on the notion that nurses, doctors and other healthcare providers owe a patient a certain standard of care. This standard is the level of competence and prudence that reasonable doctors with the same training would employ in similar circumstances. Your legal team needs to show that your doctor breached this standard and caused injuries to which you sustained quantifiable damages.

A doctor's standard of care is usually a matter of opinion, and it is often difficult to prove. This is why it is important to hire a law firm with access to experts who can give testimony on the medical field and what reasonable professionals in the same situation as your doctor would have done.

It's not just physicians who make mistakes in their medical practice; hospital personnel, including nurses and anesthesiologists can be liable for malpractice. This is particularly true for emergency room personnel, where mistakes are often made due to a crowded environment and overworked employees. Your attorney may be able to obtain testimony from experts in the emergency department who can provide evidence of the proper procedure and how the actions of your doctor did not meet the standards.

Discovery

During the discovery stage, your attorney will collect and examine evidence that could help in proving a malpractice case. This could include medical records, witness statements as in addition to expert testimony. The information may also be requested by the legal team opposing the case. This is done by interrogatories or requests for documents. Certain materials could be protected and secret due to privacy laws, for instance HIPAA's Privacy Rule.

You must also prove your injury is the result of negligence by the doctor. This is the most difficult part of a malpractice claim because it requires expert witness testimony that supports your claim.

Your lawyer can also question witnesses to prove that the doctor was negligent. This can include nurses, assistants, radiologists, dentists and other personnel who were involved in your treatment. Your attorney will know how to take effective and strong depositions in order to get these witnesses accept that the doctor was negligent.

Most lawsuits are resolved, or settled, before they reach the trial stage. In the case of medical malpractice, this is especially common as the costs of going to trial can be expensive. Once the facts of your case have been established, a settlement may be agreed upon between you and the insurance company for the doctor. If a settlement isn't possible your case will go to trial.

Trial

When your lawyer has completed the initial investigation and concludes that you have a strong malpractice case they will file the complaint. The complaint will clearly state the allegations and must be delivered to the defendant in the summons.

The next stage is discovery. This includes the exchange of medical records and depositions of witnesses. The lawyer will use the statements to prove that your doctor acted in violation of the standard of care. The aim is to prove that the error was the result of negligence by the doctor and caused damage.

In addition to the witness's testimony, your medical malpractice attorney will also work with two or three expert witnesses to prove your claim. These experts will be given medical records as well as detailed information about your case to prepare for their testimony and deposition. They can also assist in preparing your case for trial.

Your attorney will begin settlement discussions with the defense as part of the preparation for trial. This process is ongoing throughout the trial and can sometimes last for years. In this time, it is likely that you'll be recovering from your injuries and determining the amount and value of your injuries. When you can, it's in everyone’s best interest to avoid litigation and settle outside of court. Your attorney will carefully evaluate the merits of a settlement against your current and long-term recovery. If the settlement offer seems reasonable and fair, then your lawyer will advise you to accept it.

Damages

During the process of discovery, plaintiffs must show that their losses were significant and that the negligence of the defendant contributed to the damages. For instance, if the doctor failed to inform the patient of the 30 percent chance that the procedure could result in the loss of arm, and the operation was perfect but the patient lost an arm in the process, then the medical professional could be held accountable for negligence.

A victim may also show that a skilled lawyer could have averted or reduced the financial loss. This is often referred to as the "but for test". It is also necessary to demonstrate that the plaintiff has incurred expenses to pursue a legal claim which are more than the amount sought for compensation.

Our medical malpractice lawyers can explain the various types of damages attained in a malpractice lawyers case including past, present and foreseeable medical expenses as well as lost income, pain and suffering as well as other non-economic losses. The greater the amount of money awarded the more serious the injury. However, a verdict that is deemed to be a success may be rescinded when appealed. So, settling out of court can be an advantageous option for some clients. It could save money and time on litigation costs. It also reduces the risk of having a jury deciding a case based on emotion instead of fact.

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