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How to File a Medical Malpractice Lawsuit

Both physicians and lawyers must spend a significant amount of time and money in many medical malpractice lawsuits. This investment includes attorney time court fees, expert witness fees and other costs.

An injury caused by an healthcare professional's negligence, mistake, or omission could result in a medical malpractice claim. Victims of injury may seek compensation damages, including actual economic losses, such as past and future medical bills as well as non-economic loss such as pain and suffering.

Complaint

A medical malpractice lawsuit has many moving parts and requires credible evidence to prevail. The patient who has been injured or their attorney, in the event that the patient has passed away, must show each of these legal elements:

The defendant did not fulfill that obligation. 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 duty of care does not cause injury on its own. It must be demonstrated that it directly caused the injury and was the primary reason for the injury.

It is usually required to file a complaint to a state medical board in order to safeguard patients' rights and ensure that the doctor does not engage in further errors. However, filing a claim does not start the process of a lawsuit, and is typically just a beginning step in getting the malpractice claim moving. It is recommended to talk with a Syracuse malpractice attorney prior to filing any report or other document.

Summons

As part of the legal process a summons or claim forms is filed with the court and then handed to the defendant doctor. A lawyer appointed by the court for plaintiff will review the documents and, if they believe that there is a case of malpractice then they will file a complaint and affidavit to the court detailing the medical error that they believe to have committed.

The next step is to gather evidence through pretrial disclosure. This involves filing requests for documents such as hospital bills and clinic notes, and taking depositions of the defendant physician. Attorneys will then inquire with the defendant under oath about his or her knowledge regarding the case.

The attorney representing the plaintiff will use this information to establish the elements of a medical negligence claim during trial. 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 doctor's breach of this duty and a causal link between the breach and injury or death of the patient and enough damages to warrant a monetary compensation award.

Discovery

During the process of discovery, both sides are entitled to ask for and receive evidence that is relevant to the case. This includes medical records prior to and after the an alleged malpractice, details about experts, copies of tax returns or other documentation related to expenses out of pocket that the plaintiff claims were incurred, and the names and contact information of any witnesses who are scheduled to testify at trial.

The majority of states have a statute of limitations which limits the amount of period that a patient must pursue a lawsuit after being injured due to an error made by a doctor. The length of time is determined by the laws of the state and are subject to a rule known as the "discovery rules."

To prevail in a medical malpractice lawsuit, the patient must demonstrate that the negligence of the doctor caused specific harm, like physical pain or loss of income. They must also prove causation i.e. that the negligent treatment caused their death or injury.

Deposition

Depositions are question-and-answer sessions that are conducted in the presence of a court reporter who documents both the questions and the responses. The deposition is an element of the discovery process in which parties collect information for use in a trial.

Depositions permit attorneys to ask witnesses, often doctors, a series of questions. If a doctor is deposed, he or she must answer all questions truthfully under the oath. Usually, the physician is first asked questions by an attorney before being cross examined by another attorney. This is an essential stage of the trial and requires the complete attention and focus of the doctor.

A deposition is an excellent way for attorneys to obtain an extensive background on the doctor, including his education, training and experience. This information is critical to proving that the physician breached the standard of care in your case and that the breach directly caused injury to you. For example, physicians who have completed training in the area of malpractice cases generally be able to prove that they have a lot of knowledge of specific procedures and techniques that may be relevant to a specific medical malpractice case.

Trial

A lawsuit in a civil court is officially launched when your lawyer is able to file a complaint as well as a summons with the appropriate court. The process begins with a legal requirement of disclosure, referred to as discovery where you and your doctor's team collaborate to collect evidence to prove your case. This usually includes medical records as well as testimony from experts.

To prove malpractice it is necessary to prove that the actions of your doctor were below the standard of care. Your lawyer must convince a jury that it is more likely than not your injuries would not have occurred if your doctor acted in accordance with the standard of care. The lawyer representing your doctor will argue defenses that contradict the evidence presented by your attorney.

Despite the belief that doctors are the target of frivolous claims of malpractice Evidence from decades show that juries make reasonable judgments of negligence and damages and that juries are skeptical of excessive award amounts. The majority of malpractice cases settle before trial.