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How to File a Medical Malpractice Lawsuit

Lawyers and doctors must invest considerable time and funds in many medical malpractice lawsuits. This investment covers physician time and work product as well as attorney time, court costs as well as expert witness fees and many other costs.

A traumatic injury caused by an healthcare professional's negligence, mistake, or omission can result in medical malpractice claims. Victims of injury can seek compensation for economic losses, like past or future medical expenses and also non-economic damages, such as discomfort and pain.

Complaint

A medical malpractice claim is a complex matter and requires a solid proof of the claim to be successful. The injured person, or their attorney when the patient has passed away must show each of these legal elements:

The defendant breached that duty. The defendant breached this duty. The breach directly caused injury for the plaintiff. This element is known as "cause". A breach of a duty of care does not in itself cause injury. It must be demonstrated that it caused the injury directly and was the main reason for the injury.

To ensure the rights of patients, and to ensure that a physician does not commit further wrongdoing, it's necessary to file a claim with the state medical board. A report is not a lawsuit, but it could be an excellent first step in getting the malpractice claim started. It is recommended to talk with a Syracuse malpractice attorney prior to filing any report or document.

Summons

As part of the legal process the summons or claim form is filed with the court and handed to the defendant doctor. A lawyer for the plaintiff appointed by the court will review these documents. If it is determined that there may be a malpractice case, the lawyer will file an affidavit and a complaint with the court, detailing the possible error.

The next step is obtaining evidence by pretrial disclosure. This involves submitting documents like hospital billing information and clinic notes and taking the deposition of the defendant's physician, where attorneys question the defendant about his or his knowledge of the case under an oath.

The plaintiff's attorney will use this evidence to prove the elements of a medical malpractice case in court. These include the existence of an obligation on the doctor's part to provide medical care and treatment to patients; the physician's violation of this duty; a causal link between the breach and the patient's injury or death and a significant amount of damages that result from the death or injury to justly award monetary compensation.

Discovery

During the discovery phase during the discovery phase, both parties are able to request evidence pertinent to their case. This includes medical records prior to and after an incident of alleged negligence, information regarding experts and tax returns or other documents relating to expenses out of pocket the plaintiff claims have been incurred, and the names and contact information of witnesses who will be appearing in the trial.

The majority of states have a statute of limitation that allows injured patients only a certain number of years after an injury or medical mistake to bring a lawsuit. These time limits are typically determined by state law, and are subject to rules called the "discovery rule."

To prevail in a medical negligence case an injured victim must prove that the doctor's negligence caused a specific harm that is physical pain or loss of income. They must also prove causationwhich means that the negligent treatment was directly responsible for their injuries or death.

Deposition

Depositions are question-and-answer sessions conducted in the presence of an official court reporter who records both the questions and answers. The deposition is an element of the process of discovery in which the parties gather information for use in the trial.

Depositions allow attorneys to question witnesses, often doctors to answer a set of questions. If a doctor is deposed, he or she must answer each question truthfully under oath. Typically, the doctor is first asked questions by an attorney and then interviewed by another attorney. This is a crucial phase in the trial and the doctor must be attentive to the case.

A deposition is a great way for attorneys to get details about the doctor, including her training, education and experience. This information is crucial to showing that the doctor violated the standard of care you expect and caused you harm. Doctors who have been trained in this area often testify they have extensive experience performing specific procedures and techniques that could be relevant to your particular medical malpractice case.

Trial

Your lawyer will file a complaint with the court and will issue a summons. This starts a legal disclosure process called discovery. You and your doctor's team will collaborate to gather evidence to prove your case. This evidence usually includes medical records and testimony from an expert witness.

To prove that you committed a crime, you must establish that your doctor's actions were not in accordance with the standards of care. Your lawyer must convince a jury that it is more likely than not your injuries wouldn't have occurred if your doctor followed the standards of care. The lawyer representing your doctor will argue defenses which contradict the evidence presented by your attorney.

Despite the belief that doctors are targets for unsubstantiated claims of malpractice, decades of empirical evidence shows that juries make reasonable judgments of negligence and damages, and that juries tend to be skeptical of excessive award amounts. The majority of malpractice cases settle prior to trial.