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How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits can be a bit complicated. There are specific guidelines to follow, including a deadline within which the lawsuit may be filed.

In addition to proving negligence, the claimant must show that the doctor's actions led to injuries and losses. This will require medical and hospital records.

Complaint

Your attorney will file a court complaint and summons once he or she has discovered evidence of malpractice. The complaint will name the defendants and describe the allegations you make against them.

The basis for malpractice claims is the idea that a doctor or healthcare professional owes a patient a standard of care. This is defined as the degree of competence and care that a reasonably prudent medical professional with the same training would exercise in similar circumstances. Your legal team has to show that your doctor violated this standard which resulted in injuries from which you suffered quantifiable damages.

The standard of care for a doctor is usually an issue of opinion, and is difficult to prove. This is why it is crucial to choose a law firm that has access to experts who can testify about the medical field and what reasonable medical professionals in the same situation as your doctor would have done.

It's not just doctors who make mistakes, but so can hospital personnel, like nurses and anesthesiologists. This is especially true of emergency room staff, as mistakes are often attributed to the crazed atmosphere and overworked workers. Your lawyer may be able obtain evidence from experts in the emergency room who can provide evidence of the proper procedure and how your doctor's actions were not up to the standard.

Discovery

During the discovery phase your lawyer will collect and examine evidence that could be used to support a malpractice claim. This includes medical documents, witness statements, expert testimony, and more. The legal team of the other side will also have the opportunity to request this information from you and your attorney. This is done through interrogatories or requests for documents. Certain documents could be classified as confidential or privy due to privacy laws, such as HIPAA and its Privacy Rule.

You must also prove that your injury was the result of a negligent doctor. This is the most difficult aspect of a medical malpractice case since it requires expert testimony to back your claim.

Your lawyer will also interview witnesses that can prove that the doctor was negligent. This could include nurses, assistants, radiologists, dentists and other personnel who were involved in your care. Your attorney will be skilled in preparing powerful and effective depositions to get these witnesses to admit that the doctor's negligence was not their fault.

Most lawsuits are settled, or settled, prior to reaching the trial stage. This is especially common in medical malpractice cases since the costs of a trial can be very high. After the facts of your case are established, a settlement can be discussed between you and your insurance company for the doctor. If a settlement isn't feasible your case will proceed to trial.

Trial

When your lawyer has completed the initial investigation and concludes that you have a strong malpractice case, they will file the complaint. This will clearly state your allegations and will be served to the defendant along with a summons.

Discovery is the next stage. This includes the exchange of medical records as well as depositions of witnesses. The lawyer will use the statements to prove that the doctor violated the standard of care. The goal is to establish that the error was the result of the doctor's negligence, and resulted in damages.

In addition to the witness statement, your medical malpractice attorney will work with a couple of expert witnesses to prove your claim. These experts will receive medical records and detailed information about your case to prepare for their testimony and deposition. They may also assist in the preparation of your case for trial.

Your lawyer will initiate settlement discussions with the defense as part of the preparation for trial. This process can last for several years. In this time, you are recovering from your injuries and determining the extent of your damages. It's in everyone's best interest to settle your case outside of the court and avoid litigation as often as it is possible. Your attorney will carefully compare the merits of any settlement proposal with your current and future recoveries. If the settlement offer seems reasonable then your lawyer will advise you to accept it.

Damages

During the discovery phase, plaintiffs will need to prove that their losses are substantial and that the negligence of the defendant has caused these damages. For instance, if a doctor failed to inform the patient that the surgery was a 30 percent risk of losing a limb, and the procedure was completed perfectly but the patient lost their arm in the process, the medical professional could be held accountable for malpractice.

To be able to bring a valid malpractice lawsuit, the person who is suing must also prove that a competent lawyer could have been able to prevent their financial loss or at least minimize its size. This is often referred to as the "but for test". In addition, it is important to show that the plaintiff was liable for costs to pursue a legal claim which are more than the amount demanded as compensation.

Our medical malpractice lawyers can explain the various types of damages that may be sustained in a malpractice lawsuit including the past, present and future medical expenses and lost income, as well as suffering and other non-economic losses. The higher the amount, the more serious injury. However, a ruling that is successful may be rescinded in appeal. Settlements outside of court can be beneficial for a few clients. It can save money as well as time in litigation fees. It also avoids the possibility of a jury ruling on a case based upon emotions instead of facts.