How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits are complex. There are certain guidelines to be followed, which include a deadline within which the lawsuit can be filed.

The claimant must also prove that the doctor's actions caused injuries and losses. This will require medical and hospital records.

Complaint

Your attorney will file a court complaint and summons if he or she has found evidence of misconduct. The complaint will identify the defendants in your case, and clearly outlines the allegations you're making against them.

Malpractice claims are based on the notion that a doctor or nurse or other healthcare professional owes a patient a standard of care. This standard is the level of competence and prudence that reasonable doctors who has similar training would apply in similar situations. Your legal team will have to prove that your doctor breached this standard, resulting in injuries from which you sustained damages quantifiable.

The standard of care for a doctor is usually a matter of opinion and is often difficult to prove. This is why it's essential to select a law firm that has access to expert witnesses who can testify about the medical field and what reasonable medical professionals in your situation would have done.

Not only physicians can make mistakes, but so can hospital staff, such as anesthesiologists and nurses. This is particularly true for emergency room staff, as errors are usually due to a hectic atmosphere and overworked staff. Your attorney may be in a position to secure expert testimony from emergency room staff who can provide evidence of what should have happened and how your doctor failed to fulfill this standard.

Discovery

During the discovery process your lawyer will gather and examine evidence that may prove a malpractice claim. This includes medical records and witness statements as in addition to expert testimony. The information may also be requested by the legal team opposing the case. This is accomplished through interrogatories or requests for documents. Certain documents may be considered to be confidential and secret due to privacy laws, such as HIPAA's Privacy Rule.

You must also prove your injury is the result of negligence by the doctor. This is the most difficult element of a case involving medical negligence as it requires an expert testimony to support your claim.

Your lawyer will also interview witnesses to prove that the doctor was negligent. This could include radiologists, malpractice dentists nurses, assistants, as well as other individuals who were involved in the treatment of your health. Your lawyer will know how to conduct powerful and convincing depositions to make witnesses to admitting that the doctor's negligence was a factor.

Most lawsuits are resolved, or settled, prior to reaching the trial stage. In the case of medical malpractice this is particularly common as the costs of going to trial can be quite expensive. Once the facts are established, you can negotiate an agreement with the doctor's insurer. If a settlement is not reached, your case may proceed to trial.

Trial

Your lawyer will file a complaint following completing the initial investigation. If they determine that you have a convincing case for malpractice, they will file it. The complaint will clearly state the allegations and will be given to the defendant along with the summons.

The next phase is discovery. This involves the exchange of medical records and depositions from witnesses. Your lawyer will make use of these statements to prove your doctor's violation of the standard of care. The aim is to prove that the error resulted of negligence on the part of the doctor and caused damage.

In addition to the witness's testimony, your medical malpractice attorney will collaborate with one or two expert witnesses to prove your claim. These experts will receive medical records as well as detailed information regarding your case to prepare for their depositions and testimony. They can also assist you in preparing your case for trial.

Your lawyer will begin discussions on settlement with the defense during the preparation for trial. The process can take several years. During this time, it is important that you are recovering from your injuries and determining the extent of your injuries. If you can, it is beneficial for everyone to avoid litigation and settle out of court. Your attorney will carefully evaluate the advantages of a settlement offer against your present and long-term recovery. If the settlement is fair your lawyer will convince you to accept it.

Damages

During the process of discovery the plaintiffs must prove that their losses were substantial and that the negligence of the defendant caused the damages. If, for example, the doctor did not inform the patient of the 30% risk that the procedure would result in the loss of a leg, and the surgery was flawless, but the patient lost an arm and limb, then the medical professional could be held responsible for malpractice.

To have a viable malpractice suit, the plaintiff must also prove that a competent attorney could have helped reduce their financial loss, or at least reduce the size. This is commonly referred as the "but for" test. It is also important to prove that the plaintiff has incurred costs in pursuit a successful legal claim that is higher than the amount demanded in compensation.

Our medical malpractice lawyers are able to explain the various types of damages that can be granted in a malpractice case, including past, current and future medical expenses as also lost income as well as pain and discomfort and other non-economic losses. In general, the more severe the injury, the more the award. However, a successful verdict may be rescinded on appeal. Therefore, settling the case outside of court may be an advantageous alternative for some clients. It could save money and time in litigation fees. It also helps avoid the risk of having a jury deciding a case based on emotions instead of facts.