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How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits are complex. There are specific guidelines to follow, including the time frame within which the lawsuit can be filed.

In addition to showing negligence, the claimant must show that the actions of the doctor led to injuries and losses. This will require hospital and medical documents.

Complaint

When your attorney's inquiry has discovered evidence of malpractice occurred, the attorney will file a lawsuit in court and issue summons. The complaint identifies the defendants in your case, and clearly outlines the allegations you are making against them.

Malpractice claims are based on the idea that a doctor, nurse or other healthcare provider owes a patient a minimum standard of care. This standard is defined as the level of expertise and prudence that a reasonably prudent medical professional who has similar training would exhibit in similar situations. Your legal team must prove that your doctor did not adhere to this standard and caused you to suffer damages.

A doctor's standard of care is often a matter of opinion and can be difficult to prove. This is why it is essential to select a law firm with access to experts who can testify about the medical field and what reasonable medical professionals in your doctor's position would have done.

Not only physicians can make mistakes, but also hospital staff, such as anesthesiologists and nurses. This is especially true for emergency room staff, where mistakes are frequently made due to a chaotic environment and overworked staff. Your lawyer may be in a position to get an expert witness from the emergency room personnel who can provide evidence of what should have happened and why your doctor was unable to meet the standards.

Discovery

During the discovery process your lawyer will collect and analyze evidence that could prove a malpractice case. This includes medical records and witness statements as also expert testimony. These records can also be requested by the opposing legal team. This is accomplished through interrogatories or requests for documents. However, certain materials may be classified as confidential or privileged because of privacy laws such as HIPAA and its Privacy Rule.

You must also prove that your injury is the result of negligence by the doctor. This is the most challenging part of a medical malpractice case since it requires expert witness testimony that proves your claim.

Your lawyer will also call any witnesses that can prove the doctor's negligent actions. This could include radiologists, dentists, nurses, assistants and other personnel who were involved in the care of your health. Your lawyer will know how to take effective and strong depositions to make witnesses to accept that the doctor's negligence was a factor.

The majority of lawsuits are resolved or settled, before they reach the trial stage. In the case of medical malpractice this is particularly common because the cost of going to trial can be expensive. Once the facts are established, you can negotiate an agreement with the insurer of the doctor. If a settlement isn't possible, your case will then proceed to trial.

Trial

Once your attorney has completed the initial investigation and determines you have a strong malpractice case they will file the complaint. This will clearly state the allegations and must be delivered to the defendant along with a summons.

Discovery is the next stage. This involves the exchange of medical records as well as depositions of witnesses. Your lawyer will use these documents to prove your doctor's breach of standard of care. The goal is to show that the error was caused by the doctor's negligence, and caused damages.

Your medical malpractice attorney will also work with one or more expert witnesses to support your claim. These experts will be provided medical records as well as detailed information regarding your case in order to prepare for their deposition and testimony. They may also assist in preparing your case for trial.

Your lawyer will begin settlement discussions with the defense as part of the preparation for trial. The process continues throughout the trial and can take up to years. During this time, you are recovering from your injuries and determining the magnitude of your losses. It's in everyone's interest to settle out of the court and avoid litigation as often as it is possible. Your lawyer will carefully consider the merits of any settlement proposal with your current and potential recovery. If the settlement proposal is reasonable and fair, then your attorney will convince you to accept it.

Damages

During the process of discovery Plaintiffs must demonstrate that their losses were significant and that the negligence of the defendant was a factor in the damages. For instance, if a doctor failed to inform the patient that a surgery carried a 30 percent chance of losing a limb. If the surgery was performed perfectly but the patient lost their arm and the medical professional could be held accountable for negligence.

In order to have a legitimate malpractice suit, the plaintiff must also show that a competent attorney could have been able to prevent their financial loss or at a minimum, lessen its size. This is often referred to as the "but for" test. It is also important to show that the plaintiff incurred costs in pursuing a successful legal claim, which is more than the amount sought in compensation.

Our medical malpractice lawyers are able to explain the various forms of damages that can be caused by a malpractice lawsuit including the past, present and future medical expenses as well as lost income, pain and suffering and other non-economic losses. The higher the award, the more serious injury. However, a decision that is successful may be rescinded on appeal. Settlements that are not in court may be beneficial for a few clients. It will help save time and money on court costs, as well being able to avoid the potential risk of having a jury decide a case based on the basis of emotions rather than fact.