How to File a Medical Malpractice Lawsuit

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

A traumatic injury caused by the negligence of a healthcare professional's misconduct, error or omission can result in medical malpractice claims. Injury victims may seek compensatory damages, which could include actual economic losses such as future and past medical bills, as well as noneconomic damages like pain and suffering.

Complaint

A medical malpractice case is complex and requires proof of credibility for success. The person who was injured (or their attorney if they've lost their claim) must show each of these legal elements of the claim:

That a doctor or hospital was bound to follow the standards of care in force. The defendant violated this duty. That the breach directly caused injury to the plaintiff. This aspect of a malpractice claim is called "causation." A breach of the standard of care does not cause an injury, but it must be proved that the breach directly caused the injury and was the main reason for the injury.

In order to protect the rights of a patient and to ensure that a physician does not continue to commit mistakes, it is essential to file a complaint with the state medical board. However, medical malpractice lawsuits filing a claim does not initiate the process of a lawsuit, and is typically only a first step in making the malpractice claim move. It is best to consult a Syracuse malpractice attorney before making any report or other document.

Summons

As part of the legal procedure, an order or claim form is filed with the court and then handed to the defendant doctor. A plaintiff's lawyer appointed by the court will go through these documents. If it appears there may be a malpractice case, the lawyer will file an affidavit as well as a complaint with the court, detailing the alleged error.

The next step is to obtain evidence by pretrial disclosure. This includes making requests for evidence, such as hospital billing and clinic notes, as well as taking the deposition of the defendant's doctor. Attorneys will then ask the defendant under oath about their knowledge of the case.

The information provided will be used by the attorney representing the plaintiff to prove elements of a claim for medical negligence in court. These include the existence of a duty 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 death or injury and a significant amount of damages that result from the accident or death to be able to justify a monetary compensation.

Discovery

During the discovery process, both sides are able to ask for and receive evidence that is relevant to the case. This includes medical malpractice law firms records before and following the suspected malpractice, information on expert witnesses and tax returns, copies or other documentation that pertains to expenses out of pocket that the plaintiff claims to have incurred, along with the names and contact information of any witnesses who are scheduled to testify at trial.

Most states have a statute of limitation that permits injured patients a certain number of years after a medical error to file a lawsuit. The length of time is determined by state laws and are subject to a rule called the "discovery rules."

To prevail in a medical malpractice case an injured victim must prove that the doctor's negligence caused a specific injury like physical pain or loss of income. They must also prove causation, i.e. that the negligent treatment led to their death or injury.

Deposition

Depositions are question-and-answer sessions that take place in the presence of a court reporter who takes notes of the questions as well as the answers. The deposition is part of the discovery process, which is the process of gathering evidence that can be used in the course of a trial.

Depositions allow attorneys to ask witnesses, typically doctors to answer a set of questions. When a physician is deposed and questioned, they must answer each question truthfully under oath. Typically, the doctor is asked questions by an attorney and then cross-examined by another attorney. This is an important stage in the case and the doctor must focus on it with complete attention.

A deposition is a fantastic opportunity for lawyers to gather an in-depth background on the doctor, including his education, training and experience. This information is essential to proving the doctor breached the standard of care you expect and caused you injury. Physicians who have been educated in this area often testify they have extensive knowledge of certain procedures and techniques that may be relevant to your particular medical malpractice case.

Trial

Your lawyer will submit a complaint to the court, along with a summons. This initiates a legal process of disclosure, referred to as discovery where you and your physician's team work together to gather information to prove your case. The evidence usually consists of medical records as well as testimony from expert witnesses.

The objective of proving that you have committed a malpractice is to establish that your physician's actions did not meet the standards of care. Your lawyer must convince a jury that it is more likely than not your injuries would not have occurred if your doctor followed the standards of care. Your doctor's lawyer will present arguments that are contrary to the evidence presented by your attorney.

Despite the belief that doctors are the target of unsubstantiated claims of malpractice the decades of evidence shows that jury verdicts reflect reasonable judgments of negligence and damages and that juries are skeptical of inflated award amounts. The vast majority of malpractice cases are settled prior to trial.