How to File a Medical Malpractice Lawsuit
Many
medical malpractice lawsuits require significant time and resources from both physicians and attorneys. This can include attorney time, court fees expert witness fees, court costs and other costs.
A medical malpractice case can be filed in the event that a healthcare professional has been negligent, has committed misconduct or committed an error or failed to act. Plaintiffs seeking compensation for their injuries can seek damages, including the actual economic loss, such as the future and past medical bills, as well as non-economic losses such as pain and suffering.
Complaint
A medical malpractice claim is a complex matter and requires credible proof to be able to prevail. The person who was injured (or their attorney if they've died) must show each of these legal elements of the claim:
The defendant did not fulfill that duty. The defendant failed to meet this duty. The breach directly caused injury for the plaintiff. This element is known as "cause". A breach of a standard of care cannot necessarily cause injury. It must be proved that it caused the injury directly and was the main reason for the injury.
It is usually necessary to file a formal complaint with a state medical board in order to safeguard the rights of the patient and to ensure that the doctor does not commit any further malpractice. A report is not a lawsuit, but it can be the first step to getting the malpractice claim started. It is recommended to consult with an Syracuse malpractice lawyer before making a report or other document.
Summons
As part of the legal process a summons or claim form is filed with the court and delivered to the defendant doctor. A lawyer appointed by the court for plaintiff will then review these documents and, if it is found that there is an instance of malpractice the lawyer will file a complaint along with an affidavit with the court describing the alleged medical error.
The next step is obtaining evidence by pretrial disclosure. This involves submitting documents such as hospital billing information and clinic notes and taking the defendant's deposition in which attorneys ask the defendant about his or their knowledge of the matter under oath.
The attorney for the plaintiff will use this evidence to prove the elements of a claim for medical malpractice at trial. The elements of a
medical malpractice attorney malpractice case include the existence of a duty on the part of the doctor to provide treatment and care to patients, the doctor's failure to fulfill this duty and a causal link between the breach and the injury or death of the patient, and enough damages to warrant a monetary award.
Discovery
During the process of discovery each side is entitled to seek and receive evidence pertinent to the case. This includes medical records before and following the mishaps, information about expert witnesses and tax returns, copies or other documentation relating to out-of-pocket expenses the plaintiff claims they incurred, and also the names and contact details for any witnesses who will testify at trial.
The majority of states have a statute of limitation that permits injured patients the time period of a certain amount of years after an injury or medical mistake to make a claim. These time limits are typically set by law in the state, and they are subject to a rule known as the "discovery rule."
To prevail in a medical malpractice lawsuit the injured person must prove that the doctor's negligence caused specific harm for example, physical pain or loss of income. They must also prove causation -which means that the negligent treatment was the sole reason for their injuries or death.
Deposition
Depositions are essentially question-and-answer meetings which take place in the presence a court reporter, who records the questions as well as the answers. The deposition is a part of the process of discovery, which consists of gathering information that can be used in the trial.
Attorneys are able to ask a series of questions to witnesses, typically doctors. If a doctor is deposed by a lawyer, the doctor must answer the questions truthfully 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 step in the trial, and the physician must give it their full attention.
Depositions are a great way for attorneys to get details about the doctor, including his or the doctor's education, training and experience. This information is essential to establish that the doctor violated the standard of care in your situation and that the breach directly caused you harm. For instance, doctors who have been trained in the field of malpractice cases typically will testify that they have vast experience in the execution of certain procedures and techniques that may be relevant to a specific medical-malpractice claim.
Trial
Your lawyer will file a complaint with the court and will issue a summons. This initiates a legal process of disclosure known as discovery where you and the doctor's team collaborate to collect evidence to support your case. This evidence typically includes medical records as well as testimony from expert witnesses.
To prove malpractice you must prove that the actions of your doctor did not meet the standards of care. Your lawyer must convince jurors that it is more likely than not your injuries would not have occurred if your doctor followed the standards of care. The lawyer for your doctor will present defenses that contradict the evidence presented to you by your lawyer.
Despite the legend that doctors are targets for malpractice claims that are not meritorious, years of empirical research has shown that jury verdicts typically reflect reasonable assessments of negligence and damages and juries are skeptical of excessive damage awards. The majority of malpractice cases settle prior to trial.