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How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits can be very complicated. There are specific rules that must be followed including a certain time period in which the suit can be filed.

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

Complaint

If your attorney's probe has uncovered evidence that malpractice occurred, he or she will file a complaint with the court along with summons. The complaint will identify the defendants, and then state the allegations against them.

The basis for malpractice claims is the notion that a doctor, nurse or other healthcare professional owes a patient a standard of treatment. This is defined as the amount of competence and care that a reasonably prudent medical professional with similar training would exhibit in similar situations. Your legal team must prove that your doctor violated this standard and caused you to suffer damage.

It isn't easy to prove that a doctor's standard is the same as another doctor's. It is essential to find an attorney who has access to experts in the field of medicine to testify about what a competent professional would have done.

It's not just doctors who make mistakes in their medical practice; hospital staff members, such as nurses and anesthesiologists, also may be guilty of malpractice. This is especially true for emergency room staff, whose mistakes are often made due to a crowded environment and overworked employees. Your lawyer could be able to get expert testimony from emergency room staff who can provide evidence of the circumstances that led to the incident and how your doctor failed to meet the standard.

Discovery

During the discovery process your lawyer will collect and review evidence that could be used to support a malpractice claim. This includes medical records, witness statements, as also expert testimony. The information could be requested by the opposing legal team. This is typically done via interrogatories and requests for the production of documents. Certain materials are considered to be privileged and confidential because of privacy laws, like HIPAA's Privacy Rule.

You must also prove your injury is the result of the negligence of your doctor. This is the most challenging aspect of a medical negligence case since it requires expert witness testimony to support your claim.

Your lawyer will also interview witnesses that can prove that the doctor was negligent. This includes radiologists, dentists nurses, assistants, nurses and others who were involved in the treatment of your health. Your lawyer will know how to take effective and strong depositions so that witnesses to acknowledge that the doctor was negligent.

Most lawsuits are resolved, or settled, before they get to the trial stage. This is particularly true in medical malpractice cases as the costs associated with the trial process can be high. Once the facts are established then you can negotiate an agreement with the doctor's insurer. If no settlement can be reached, the case may go to trial.

Trial

Your attorney will file a complaint after completing the initial investigation. If they find that you have a compelling case of malpractice, then they will file it. This will clearly outline the allegations and be sent to the defendant with a summons.

Discovery is the next stage. The next phase involves discovery. This involves the exchange and deposition of witnesses. Your lawyer will use these statements to prove that your doctor violated the standards of care. The objective is to prove that the error was caused by the negligence of the doctor, and caused damages.

In addition to the witness statement, your medical malpractice law firms attorney will also work with two or three expert witnesses to back up your claim. They will be provided with medical records as well as detailed information about your case in preparation for their depositions and testimony. They may also help in making your case ready for trial.

As part of the trial preparation the attorney will initiate negotiations for settlement with the defense. The process continues throughout the trial, and can take up to years. During this time, it is important that you are recovering from your injuries and determining the extent of your injuries. When possible, it's in everyone's best interest to avoid litigation and settle out of court. Your attorney will carefully compare the merits of any settlement offer against your current and future recovery. If the settlement is reasonable 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 caused those damages. For instance, if a doctor failed to inform the patient that the procedure carried a 30 percent chance of losing a limb and the surgery was performed perfectly but the patient lost their arm and the medical professional could be held liable for malpractice.

To have a viable malpractice lawsuit, the victim must prove that a competent lawyer could have been able reduce their financial loss, or at least minimize the size. This is sometimes referred to as the "but for" test. It is also necessary to prove that the plaintiff has paid for expenses in pursuing a successful legal claim, which is greater than the amount sought in compensation.

Our medical malpractice lawyers are able to explain the various types of damages that can be sustained in a malpractice law firm lawsuit including past, present and future medical expenses as well as lost income, pain and suffering and other non-economic losses. In general, the more serious the injury, higher the award. However, a verdict that is deemed to be a success may be rescinded in appeal. So, settling outside of court could be an advantageous option for a few clients. It can save money as well as time on litigation costs. It also helps avoid the possibility of a jury choosing a case based on emotion instead of fact.