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 attorney time court fees expert witness fees, and other costs.

An injury caused by a healthcare professional's negligence, mistake, or omission can give rise to a medical malpractice lawyer malpractice claim. Plaintiffs seeking compensation for their injuries can seek damages, including actual economic losses, such as past and future medical bills, and noneconomic expenses like pain and suffering.

Complaint

A medical malpractice case has many moving parts and requires reliable evidence to prevail. The injured person or their attorney, should the patient die, must prove each of these legal elements:

That a hospital or doctor was bound to follow the standard of care applicable. The defendant violated this duty. 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 an injury, but it has to be shown that the breach directly caused the injury and was the proximate cause of the injury.

It is often required to file a complaint with a medical board in the state to protect the rights of the patient and ensure that the doctor doesn't commit additional mistakes. However, filing a complaint is not the start of a lawsuit and is often only a first step in moving the malpractice claim. It is often best to speak with an Syracuse attorney for malpractice prior to filing a report or other document.

Summons

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

The next step in the legal process is obtaining evidence through pretrial discovery. This includes filing requests for documents like hospital billing and clinic notes, as well as taking the deposition of the doctor who is defending the case. Attorneys will then ask the defendant on oath about their knowledge of the case.

The attorney representing the plaintiff will use this information to prove the elements of a medical malpractice claim in court. The elements of a medical malpractice claim include the existence of a duty on the part of the doctor to provide treatment and care to patients, the physician's violation of this duty and a causal connection between the breach and injury or death of the patient and an amount of damages sufficient to warrant a monetary award.

Discovery

During the discovery process both sides are able to request and receive evidence that is relevant to the case. This includes medical malpractice law firm records that were taken prior to and after an incident of negligence, information regarding experts and tax returns or other documents related to expenses out of pocket that the plaintiff claims to have caused, and the names and contact details of any witnesses who will be testifying at trial.

Most states have a statute of limitations that allows injured patients only an amount of time after a medical error to make a claim. The length of time is typically set by law of the state, and are subject to rules referred to as the "discovery rule."

To prevail in a medical malpractice case an injured victim must prove that the doctor's negligence caused harm to a specific person, such as 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 questions and answer sessions that are conducted in the presence of a court reporter who records both the questions as well as the answers. Depositions are a part of the discovery process, in which parties gather information to use in a trial.

Attorneys can pose a number of questions to witnesses, which are usually doctors. If a physician is interrogated and questioned, they must answer all questions truthfully under oath. Typically, the doctor is first asked questions by an attorney and then interrogated by a different attorney. This is an essential stage of the case that requires the complete concentration and attention of the physician.

A deposition is a way for attorneys to get a complete background on the doctor's qualifications in relation to his or their education, training and experience. This information is essential to proving that the physician breached the standard of care in your case and that the breach directly caused you injury. For instance, doctors who have completed training in the area of malpractice cases usually affirm that they have extensive experience performing certain procedures and techniques that could be relevant to a specific medical malpractice claim.

Trial

A civil court is officially launched when your lawyer lodges a complaint and a summons with the court of your choice. This initiates a legal process of disclosure called discovery, which is where you and your doctor's team work together to gather evidence to prove your case. The evidence typically comprises medical records and testimony from an expert witness.

The goal of proving negligence is to establish that your doctor's actions fell short of the standard of care. Your lawyer must convince jurors that it is more likely than not that your injuries would not have occurred had your doctor acted in accordance with the standards of care. Your doctor's lawyer will present defenses that contradict the evidence presented to you by your attorney.

Despite the myth that doctors are the target of frivolous claims of malpractice, decades of empirical evidence confirm that jury verdicts are based on reasonable judgments of negligence and damages, and that juries tend to be skeptical of award amounts that are exaggerated. The vast majority of malpractice cases are settled before trial.