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How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits can be very complicated. There are certain guidelines to be followed, which include the time frame within which the lawsuit can be filed.

The claimant also has to prove that the actions of the doctor caused injuries and losses. This will require hospital and medical records.

Complaint

Your lawyer will file a court complaint and summons when he/she has found evidence of misconduct. The complaint will identify the defendants in the case and outlines the allegations you are making against them.

Malpractice claims are based on the idea that a doctor or healthcare provider is obligated to a patient a standard of care. This is the level of competence and prudence that reasonable doctors who has similar training would apply in similar situations. Your legal team has to show that your doctor did not meet this standard which resulted in injuries from which you sustained quantifiable damages.

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

It is not just physicians who make mistakes in their medical practice; hospital staff members, such as nurses and anesthesiologists, also can be liable for malpractice. This is especially the case for emergency room personnel where mistakes are frequently due to a crowded atmosphere and overworked personnel. Your attorney may be able to secure testimony from experts in the emergency room who can help demonstrate the proper procedure and how the actions of your doctor did not meet the standards.

Discovery

During the discovery process the attorney will collect and look over evidence that could be used to prove a malpractice law firms claim. This includes medical records, witness statements, expert testimony and more. These records can also be requested by the legal team opposing the case. This is usually done through interrogatories as well as requests for production of documents. Certain documents may be considered to be confidential and private due to privacy laws, like HIPAA's Privacy Rule.

You must also prove that your injury is the result of the negligence of the doctor. This is the most difficult element of a medical negligence claim, as it requires expert testimony to back your claim.

Your lawyer will also call any witnesses that can prove the negligence of the doctor. This could include radiologists, dentists nurses, assistants, and other people who were involved in the care of your health. Your attorney will be skilled in preparing powerful and effective depositions that force these witnesses to admit that the doctor's negligence was a factor.

Most lawsuits are resolved, or settled, prior to reaching the trial stage. This is especially common in medical malpractice cases since the costs of the trial process can be high. Once the facts of your case have been established, a settlement can be agreed upon between you and the insurance company for the doctor. If a settlement isn't feasible your case will go to trial.

Trial

Your lawyer will file a complaint after an initial investigation. If they find that you have a solid case of malpractice, they will file the complaint. The complaint will clearly state your allegations and must be served to the defendant along with a summons.

The next phase is discovery. This includes the exchange of medical records and depositions of witnesses. Your lawyer will use these evidence to show that your doctor acted in violation of the standard of care. The aim is to demonstrate that the error was caused by the negligence of the doctor and caused damages.

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

As part of the preparation for trial the attorney will initiate negotiations for settlement with the defense. The process can take many years. In this time, you are recovering from your injuries and determining the severity of your damages. When you can, it's in everyone's best interest to avoid litigation and settle outside of court. Your attorney will carefully assess the merits of any settlement offer with your current and potential recovery. If the settlement offers are reasonable the lawyer will advise you to accept it.

Damages

During the discovery phase, plaintiffs need to show that their losses are substantial and that the negligence of the defendant contributed to these losses. If, for instance, the doctor failed to inform the patient of the 30% chance that the procedure could result in the loss of limb, and the surgery was perfect, but the patient lost an arm or limb, the doctor could be held liable for malpractice.

To have a viable malpractice lawsuit, the person who is suing must also prove that a competent attorney could have helped avoid financial loss or at a minimum, lessen its size. This is often referred to as the "but for test". In addition, it is essential to prove that the plaintiff was liable for costs in the pursuit of a legal claim which are over the amount demanded as compensation.

Our medical malpractice lawyers are able to explain the different types of damages that could be suffered in a malpractice lawsuit including past, present and future medical expenses as well as lost income, suffering and other economic and non-economic losses. In general, the more serious the injury, the higher the award. However, a decision that is successful is sometimes overturned upon appeal. Settlements outside of court can be beneficial for certain clients. It can save time and money on court costs, as well being able to avoid the potential risk of having a jury decide cases on the basis of emotion rather than facts.