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How to File a Medical Malpractice Lawsuit

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

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

Complaint

Your lawyer will make a court complaint and summons after he has discovered evidence of negligence. The complaint will name the defendants and describe the allegations against them.

Malpractice claims are based on the notion that doctors, nurses or other healthcare providers owe a patient an appropriate level of care. This is the level of competence and care the reasonably prudent doctor with the same training would employ in similar circumstances. Your legal team has to prove that your doctor violated this standard and resulted in you suffering quantifiable damages.

A doctor's standard of care is often an issue of opinion, and is difficult to prove. It is crucial to choose an attorney who has access to experts in the medical field to testify on what a reasonable doctor would have done.

Not only physicians can make mistakes, but so do hospital personnel, like anesthesiologists and nurses. This is particularly the case for emergency room personnel where mistakes are caused by a busy atmosphere and overworked workers. Your attorney may be able to get expert testimony from emergency room personnel who can demonstrate the circumstances that led to the incident and why your doctor was unable to meet the standard.

Discovery

During the discovery phase the attorney will gather and review evidence that may help in proving a malpractice case. This includes medical documents, witness statements expert testimony, and more. This information can also be requested by the opposing legal team. This is accomplished through interrogatories or requests for documents. Certain materials could be protected and confidential because of privacy laws, like HIPAA's Privacy Rule.

You must also prove that your injury was caused by the doctor's negligence. This is the most challenging part of a medical malpractice attorney claim because it requires expert witness testimony to support your claim.

Your lawyer will also call any witnesses that can prove the doctor's negligence. This can include radiologists, dentists as well as nurses, assistants and other people who were involved in the care of your health. Your attorney will know how to conduct powerful and convincing depositions so that these witnesses accept that the doctor was negligent.

The majority of lawsuits are settled before going to trial. In cases involving medical malpractice this is the most common since the cost of going to trial can be quite expensive. Once the facts of your case have been established, a settlement can be negotiated between you and the insurance company of the doctor. If a settlement isn't reached, your case may proceed to trial.

Trial

Your lawyer will file a formal complaint after an initial investigation. If they decide that you have a compelling case of malpractice, then they will file it. This will clearly state your allegations and be served to the defendant along with a summons.

The next phase involves discovery. This includes the exchange of medical records and depositions of witnesses. Your lawyer will make use of these statements to prove the doctor's breach of standard of care. The objective is to establish that the error was a result from the negligence of the doctor that caused damage.

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 deposition and testify. They can also assist in the preparation of your case for trial.

As part of the trial preparation your lawyer will start negotiations for settlement with the defense. This process can last for several years. During this time, it is important that you are recovering from your injuries and determining the extent of your damages. If you can, it is beneficial for everyone to avoid litigation and settle out of court. Your attorney will carefully assess the merits of any settlement offer with your current and future recoveries. If the settlement seems reasonable the lawyer will advise 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 contributed to the damages. For instance, if a doctor did not inform the patient that a surgery was associated with a 30 percent chance of losing a limb, and the surgery was performed perfectly but the patient lost their arm or limb, the doctor could be held liable for malpractice.

To have a viable malpractice suit, the plaintiff must also show that a competent attorney could have been able reduce their financial loss, or at least minimize the amount. This is commonly referred to as the "but for" test. It is also required to show that the plaintiff has paid for expenses in pursuing a successful legal claim, that is greater than the amount they seek in compensation.

Our medical malpractice lawyers are able to explain the different types of damages that may be caused by a malpractice lawsuit including past, present and foreseeable medical expenses as well as lost income, pain and suffering and other non-economic losses. Generally, the more serious the injury, the higher the award. However, a decision that is successful can sometimes be overturned in appeal. Settlements that are not in court may be beneficial for a few clients. It could save money and time in court costs. It also eliminates the risk of a juror deciding a case based on emotions instead of facts.