How to File a Medical Malpractice Lawsuit

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

In addition to showing negligence, the claimant must prove that the actions of the doctor resulted in injuries and losses. This will require medical and hospital documents.

Complaint

Once your attorney's investigation has uncovered evidence that malpractice occurred, the attorney will file a formal complaint in court and issue summons. The complaint will name the defendants and describe the allegations you make against them.

Malpractice claims are founded upon the belief that doctors, nurses or other healthcare providers are obligated to a patient the highest standard of care. This is defined as the amount of skill and caution that a reasonably prudent medical professional who has similar training would apply in similar circumstances. Your legal team has to prove that your doctor did not adhere to this standard and caused you to suffer injury.

It isn't easy to prove that a physician's standards are comparable to another doctor's. It is important to hire an attorney who has access to experts in the field of medicine to provide evidence of what a professional of reasonable standards would have done.

Not only doctors make mistakes, but so can hospital staff, including nurses and anesthesiologists. This is particularly true for emergency room staff where mistakes are often due to a crowded environment and overworked staff. Your attorney might be able to obtain testimony from experts in the emergency room who can provide evidence of what should have been done and why your doctor's actions did not meet this standard.

Discovery

During the discovery phase, your attorney will collect and analyze evidence that could be used to support a malpractice claim. This includes medical records, witness statements as and expert testimony. The legal team on the other side will also have the option to obtain this information from you and your attorney. This is typically done through interrogatories and requests for the production of documents. Certain documents could be confidential or protected because of 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 because it requires an expert testimony to back your claim.

Your lawyer will also question witnesses who can demonstrate the doctor's negligence. This can include radiologists, dentists, nurses, assistants and other people who were involved in the treatment of your health. Your attorney will know how to take powerful and convincing depositions in order to get witnesses to admitting that the doctor's negligence was a factor.

Most lawsuits are settled prior to trial. For medical malpractice cases this is particularly common because the cost of going to trial can be quite expensive. Once the facts of your case are established, a settlement may be discussed between you and your insurance company of the doctor. If a settlement cannot be reached, malpractice lawyers the case may be heard in court.

Trial

After your attorney has completed the initial investigation and decides you have an excellent malpractice case, they will file the complaint. It will state clearly your allegations and must be served on the defendant along with a summons.

Discovery is the next step. This includes the exchange of medical records as well as depositions from witnesses. Your lawyer will use these statements to prove your doctor's violation of the standard of care. The aim is to demonstrate that the error was caused by the doctor's negligence, and caused damages.

Your medical malpractice attorney will also collaborate with one or more expert witnesses to support your claim. These experts will receive medical records as well as detailed information about your case in preparation for their deposition and testimony. They may also help prepare your case for trial.

As part of the preparation for trial your lawyer will start settlement negotiations with the defense. This process continues throughout the case and can last for years. During this time, it is important that you are recovering from your injuries and determining the magnitude of your losses. If you can, it is in everyone’s best interest to avoid litigation and settle outside of court. Your lawyer will carefully consider the merits of a settlement against your present and long-term recovery. If the settlement offers are reasonable the lawyer will advise you to accept it.

Damages

During the discovery phase, plaintiffs have to prove that their losses are significant and that the negligence of the defendant has contributed to the damages. For instance, if the doctor did not inform the patient of the 30 percent possibility that the procedure might result in the loss of leg, and the surgery was perfect, but the patient lost a limb in the process, then the medical professional may be held accountable for negligence.

A victim may also show that a competent lawyer could have prevented or mitigated their financial loss. This is sometimes referred to as the "but for" test. Additionally, it is necessary to demonstrate that the plaintiff was liable for malpractice lawyers costs in the pursuit of a legal claim that is greater than the amount of compensation sought.

Our medical malpractice lawyers can explain the various types of damages that could be suffered in a malpractice lawsuit including future, present and past medical expenses, lost income, suffering and pain and suffering, and other non-economic losses. The more money you are awarded the more serious the damage. A verdict that is successful could be overturned through an appeal. Therefore, settling the case outside of court can be an advantageous option for certain clients. It can save money as well as time on court costs. It also reduces the risk of a jury making a decision based on emotion rather than fact.