How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits can be a little complicated. There are specific guidelines to follow, such as a deadline within which a lawsuit can be filed.

In addition to proving negligence, the person seeking compensation must prove that the doctor's actions led to injuries and losses. This will require medical and hospital documents.

Complaint

After your attorney's investigation has discovered evidence of malpractice was committed, he will file a lawsuit in court and issue a summons. The complaint will identify the defendants and state the allegations you bring against them.

Malpractice claims are based on the idea that nurses, doctors or other healthcare providers are obligated to a patient the same level of care. This standard is defined as the amount of care and skill that a reasonable medical professional who has similar training would exercise in similar circumstances. Your legal team must prove that your doctor violated this standard and caused you to suffer injury.

A physician's standard of care is often a matter of opinion, and is difficult to prove. This is why it is important to work with a legal firm that has access to expert witnesses who can give testimony on the medical field and what reasonable professionals in your doctor's position would have done.

Not only doctors make mistakes, but so can hospital personnel, like anesthesiologists and nurses. This is especially true for emergency room staff, where errors are usually due to a crowded environment and overworked workers. Your lawyer may be able to secure an expert witness from the emergency room staff who can demonstrate what should have happened and how your doctor failed to meet this standard.

Discovery

During the discovery process the attorney will collect and look over evidence that could be used to prove a malpractice claim. This could include medical records, witness statements as well as expert testimony. The legal team of the other side will also have the opportunity to obtain this information from you and your attorney. This is usually done through interrogatories and requests for the production of documents. However, certain materials could be privileged or confidential due to privacy laws, such as HIPAA and its Privacy Rule.

You must also prove your injury is the result of negligence by the doctor. This is the most difficult component of a medical negligence case, as it requires expert testimony to back your claim.

Your lawyer will also depose witnesses who can prove that the doctor was negligent. This could include nurses, assistants, radiologists, dentists and others who were involved in your care. Your lawyer is skilled in taking effective and convincing depositions to get these witnesses to admit that the doctor's negligence was not their fault.

The majority of lawsuits are resolved or settled, before they reach the trial stage. This is especially common in medical malpractice cases because the costs of the trial process can be high. Once the facts are established and you have a chance to negotiate a settlement with the insurance company that covers the doctor. If no settlement can be agreed upon, your case will be heard in court.

Trial

When your lawyer has completed the initial investigation and determines you have a strong malpractice case they will file the complaint. The complaint will be clear in its allegations and will be given to the defendant along with a summons.

Discovery is the next step. This includes the exchange of medical records and depositions of witnesses. Your lawyer will use these statements to prove your doctor's breach of the standard of care. The objective is to prove that the error was the result of the negligence of your doctor, and resulted in damages.

Your medical malpractice lawyer will also work with one or more expert witnesses to back your claim. They will be provided with medical records as well as detailed information about your case to prepare for their depositions and testimonies. They may also assist in preparing your case for trial.

As part of the preparation for trial the attorney will initiate negotiations for malpractice lawsuit settlement with the defense. This process is ongoing throughout the case and can take up to years. During this time, you'll be recovering from your injuries and determining the magnitude and value of your losses. It is in everyone's best interests to settle outside of the court and avoid litigation as often as it is possible. Your attorney will carefully assess the merits of any settlement with your current and potential recovery. If the settlement is fair the lawyer will advise you to accept it.

Damages

During the discovery phase, plaintiffs will need to prove that their losses are significant and that negligence on the part of the defendant has contributed to the damages. For malpractice lawsuit example, if the doctor failed to inform the patient that the surgery was a 30 percent risk of losing a limb. If the procedure was completed perfectly but the patient lost their arm and the medical professional could be held liable for malpractice.

To have a viable malpractice suit, the plaintiff must also show that a competent lawyer could have helped avoid financial loss or at the very least, reduce the amount. This is often referred to as the "but for test". In addition, it is necessary to demonstrate that the plaintiff was liable for costs in the pursuit of a legal claim that are greater than the amount demanded as compensation.

Our medical malpractice lawyers can explain the different types of damages that could be given in a malpractice lawsuit which include past, present and future medical expenses, as in addition to lost income or income, pain and discomfort and other economic or non-economic losses. The more serious the injury, the more the award. A ruling that is deemed to be successful can be rescinded by appeal. Settlements that are not in court may be beneficial for certain clients. It can reduce time and cost in litigation fees, as well as avoiding the risk of having a jury decide cases on the basis of emotions rather than facts.