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How to File a Medical Malpractice Lawsuit

Lawyers and medical malpractice attorneys doctors must invest considerable time and funds in a variety of medical malpractice lawsuits. This investment includes physician hours and work product attorneys' time, court costs and expert witness fees and countless other expenses.

An injury caused by the negligence of a healthcare professional's incompetence, error or omission could result in a medical malpractice claim. Victims of injury can seek compensation for economic losses, such as future or past medical bills and also non-economic damages, such as pain and discomfort.

Complaint

A medical malpractice lawsuit has many moving parts and requires reliable evidence to succeed. The person who was injured or their attorney when the patient has passed away must show each of these legal elements:

That a hospital or doctor was bound to follow the standard of care applicable. The defendant failed to meet this duty. The breach directly caused injury for the plaintiff. This is referred to as "cause". A breach of a standard of care does not cause injury on its own. It must be shown that it caused the injury directly and was the proximate reason for the injury.

It is typically necessary to file a formal complaint with a medical board in the state in order to protect patients' rights and ensure that the doctor doesn't commit further mistakes. But, filing a report is not the start of a lawsuit and is often just a first step to getting the malpractice case moving. It is recommended to speak with a Syracuse malpractice attorney prior to filing any report or document.

Summons

As part of the legal procedure, an order or claim form is filed with the court and handed to the defendant doctor. A lawyer appointed by the court will review the documents. If it appears there could be a malpractice claim the lawyer is required to file an affidavit, along with a complaint to the court, detailing the alleged mistake.

The next step in the legal process is to obtain evidence through pretrial discovery. This involves the submission of requests for documentation, such as hospital billing and notes from clinics, and taking the deposition of the defendant's doctor. Attorneys will then question the defendant under oath as to the details of the case.

The information provided will be used by the attorney representing the plaintiff to establish the elements of an action for medical malpractice at trial. The elements of a medical malpractice case include the existence of a duty on the part of the physician to provide medical and treatment to patients, the physician's violation of this duty and a causal connection between the breach and the injury or death of the patient and an amount of damages sufficient to warrant a monetary award.

Discovery

During the discovery phase, both parties are allowed to request evidence pertinent to their case. This includes medical records before and after the alleged malpractice, information about expert witnesses, copies of tax returns or other documentation relating to out-of-pocket expenses which the plaintiff claims they incurred, and the names and contact information for any witnesses who will be present at trial.

The majority of states have a statute of limitation that gives injured people the time period of a certain amount of years after a medical error to make a claim. The length of time is determined by the laws of the state and are subject to a regulation known as the "discovery rules."

In order to win a medical malpractice attorneys negligence lawsuit, an injured patient must show that the doctor's negligence resulted in specific harm like physical pain or loss of income. They must also prove causation, i.e. that the negligent treatment led to their death or injury.

Deposition

Depositions are essentially question-and-answer meetings that take place in presence a court reporter, who takes notes of the questions as well with the answers. The deposition is an element of the process of discovery, which involves gathering information that can be used in a trial.

Attorneys can ask a series questions to witnesses, which are usually doctors. When a doctor is questioned, they must answer all questions truthfully under oath. Typically, the doctor is first questioned by an attorney, and then interviewed by another attorney. This is an important stage in the case and the physician has to give it their full attention.

Depositions are a great method for lawyers to obtain details about the doctor, including his or her training, education and experience. This information is crucial for showing that the doctor violated the standard of care you expect and caused you injury. For example, physicians who have trained in the area of malpractice cases will typically be able to prove that they have a lot of experience in performing certain procedures and practices that could be relevant to a particular medical malpractice claim.

Trial

Your lawyer will make a complaint to the court and a summons. The process begins with a legal requirement of disclosure known as discovery where you and your physician's team work together to gather evidence to support your case. This evidence typically includes medical malpractice law firm records as well as testimony from experts.

To prove malpractice it is necessary to prove that your doctor's actions were below the standard of care. Your lawyer must convince the jury that your injuries would have been prevented if your doctor had followed the standard of care. Your doctor's lawyers will argue defenses that go against the evidence provided by your attorney.

Despite the belief that doctors are a target for malpractice claims that are frivolous, decades of empirical research shows that jury verdicts usually reflect reasonable judgments about the extent of negligence and damages, and juries are skeptical of excessive damage awards. The vast majority of malpractice cases are settled prior to trial.