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How to File a Medical Malpractice Lawsuit

Lawyers and doctors must invest significant time and money in the many lawsuits involving medical malpractice. This investment covers physician time and work product, attorney time court costs, expert witness fees, and many other costs.

A medical malpractice claim may be filed in the event that a healthcare professional was negligent or has acted in a manner that is illegal or committed an error or failed to act. Injury victims may seek compensatory damages, including the actual economic losses such as future and past medical malpractice attorneys bills as well as non-economic loss such as pain and suffering.

Complaint

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

The defendant breached the obligation. The defendant violated this duty. The breach directly caused injury to the plaintiff. This aspect of an action for malpractice is called "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 main cause of the injury.

To protect the rights of patients, and to ensure that a physician does not continue to commit mistakes, it is essential to file a claim with the state medical board. A report is not a lawsuit, but it can be a good first step in getting the malpractice claim started. It is recommended to talk with a Syracuse malpractice attorney prior to making any report or other document.

Summons

As part of the legal process an order or claim form is filed with the court and handed to the doctor who is the defendant. A court-appointed lawyer for the plaintiff will review the documents and, if they believe that there could be a case of malpractice then they will file an affidavit and complaint with the court, describing the medical malpractice attorneys error that they believe to have committed.

The next step is obtaining evidence by pretrial disclosure. This includes the submission of requests for documentation such as hospital bills and clinic notes, as well as taking depositions of the defendant's doctor. Attorneys will then inquire with the defendant under oath as to their knowledge of the case.

The lawyer for the plaintiff will utilize this information to prove the elements of a claim for medical malpractice in court. This includes the existence of an obligation on the doctor's part to provide care and treatment to patients; the physician's breach of this duty a causal link between the breach and the patient's injuries or death and a sufficient amount of damages resulting from the accident or death to justly award monetary compensation.

Discovery

During the discovery phase during the discovery phase, both parties are able to request evidence relevant to their case. This includes medical records prior to and after the mishaps, information about expert witnesses and tax returns, copies or other documentation that pertains to expenses out of pocket that the plaintiff claims to have incurred, and the names and contact details of any witnesses who are scheduled to be called to testify in the trial.

The majority of states have a statute of limitations that gives injured people the time period of a certain amount of years after an injury or medical mistake to pursue a lawsuit. Those time limits are usually determined by the law of the state and are subject to rules known as the "discovery rule."

To prevail in a medical malpractice attorney negligence case, an injured patient must prove that a doctor's negligence caused a specific injury, such as physical pain or loss of income. They must also prove causation -- that is, that the negligent treatment was directly responsible for their injuries or death.

Deposition

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

Depositions allow attorneys to ask witnesses, typically doctors, a series of questions. When a doctor is deposed, they must answer all questions in an honest and open manner under oath. Usually, the physician is first questioned by an attorney before being the attorney is cross-examined by another attorney. This is a crucial phase in the trial and the physician has to give it their full attention.

A deposition allows attorneys to gather a full background of the doctor's qualifications in relation to his or their education, training and experience. This information is crucial for convincing the court that the doctor did not adhere to your standard of care and caused injury. Doctors who have been trained in the area will often testify they have extensive knowledge of certain techniques and procedures that could be relevant to a specific medical malpractice case.

Trial

Your lawyer will submit a complaint to the court and issue a summons. This begins the process of legal disclosure, also known as discovery. Your doctor and your team will collaborate to gather evidence to prove your case. This usually includes medical records as well as testimony from an expert witness.

The purpose of proving malpractice is to prove that your doctor's actions did not meet the standard of care. Your lawyer must convince the jury that your injuries could be prevented if the doctor had acted in accordance with the standard of care. Your doctor's lawyers will argue arguments that do not agree with 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 usually reflect reasonable judgments about the extent of negligence and damages and that juries are skeptical of overinflated damages awards. The majority of malpractice cases are settled before trial.