The 10 Most Scariest Things About Medical Malpractice Attorneys

How to File a Medical Malpractice Lawsuit

Both lawyers and physicians must invest considerable time and funds in many medical malpractice lawsuits. This investment includes attorney time, court fees expert witness fees, and other costs.

A serious injury that is the result of a healthcare professional's negligence, misconduct, error or omission can give rise to a medical malpractice claim. Victims of injury may seek compensation damages, including the actual economic losses, such as past and future medical bills, and noneconomic loss such as pain and suffering.

Complaint

A medical malpractice case has many moving parts and requires credible evidence to win. The injured person, or their attorney in the event that the patient has passed away, must demonstrate each of these legal elements:

The hospital or doctor had a responsibility to follow the standard of care applicable. The defendant did not meet this obligation. The breach directly caused injury to the plaintiff. This element is known as "cause". A breach of a duty of care doesn't in itself cause injury. It must be proved that it directly caused the injury and was the proximate reason for the injury.

It is usually required to file a complaint to a state medical board in order to protect the rights of the patient and ensure that the doctor does not engage in further mistakes. A report is not a lawsuit but it could be a good first step in initiating the malpractice lawsuit. It is usually recommended to consult a Syracuse malpractice lawyer prior to filing a report or other type of document.

Summons

As part of the legal process, the summons or claim form is filed with the court, and then delivered to the doctor who is the defendant. A plaintiff's lawyer who is appointed by the court will go through these documents. If it appears that there may be a malpractice case the lawyer is required to file an affidavit as well as a complaint with the court, detailing the possible error.

The next step is to obtain evidence through pretrial disclosure. This includes making requests for evidence, such as hospital billing and clinic notes, and taking depositions of the doctor who is defending the case. Attorneys will then question the defendant on oath about the details of the case.

The attorney representing the plaintiff will use this information to prove the elements of a medical negligence claim at trial. This includes the existence of an obligation on the doctor's part to provide medical care and treatment to patients; the doctor's violation of this duty; a causal link between the breach and the patient's death or injury and a substantial amount of damages that result from the death or injury to justify a monetary award of compensation.

Discovery

During the discovery phase, both parties are allowed to request evidence that is relevant to their case. This includes medical records that were taken prior to and after an incident of negligence, information on experts and tax returns, copies of the tax return or other documents related to out-of pocket expenses that the plaintiff claims have been attributable to them, and the names and contact information of any witnesses who are expected to testify at trial.

The majority of states have a statute of limitations which allows injured patients a certain number of years after a medical mishap to make a claim. The time limit is usually set by law of the state, and are subject to rules referred to as the "discovery rule."

To prevail in a Medical Malpractice Law Firms malpractice lawsuit, the injured patient has to prove that the negligence of a doctor resulted in a specific injury, like physical pain or loss of income. They must also prove causation -- that is, that the negligent treatment was directly responsible for their injury or death.

Deposition

Depositions are question and answer sessions that take place in the presence of the court reporter who takes notes of both the questions as well as the responses. The deposition is part of the discovery process, which is about gathering information that can be used in a trial.

Depositions permit attorneys to question witnesses, often doctors to answer a series of questions. When a physician is questioned and questioned, they must answer all questions honestly under oath. Typically, the doctor is asked questions by one attorney and then cross-examined by a different attorney. This is a crucial step in the case and the physician must give it their full attention.

Depositions are a great method for lawyers to obtain a detailed background of the doctor, including her training, education and experience. This information is essential for establish that the doctor violated the standards of care in your situation and that the breach directly resulted in injury. Physicians who have been trained in this area often testify they have extensive experience performing certain procedures and techniques that could be relevant to an individual medical-malpractice case.

Trial

Your lawyer will file a complaint with the court and issue a summons. This initiates a legal process of disclosure known as discovery where you and your physician's team collaborate to collect information to prove your case. The evidence usually consists of medical records and testimony from expert witnesses.

To prove malpractice, you must establish that your doctor's actions were below the standard of care. Your lawyer must convince a jury that it is more likely than not that your injuries would not have occurred if your doctor followed the standards of care. The lawyer for your doctor will present arguments that are contrary to the evidence presented to you by your lawyer.

Despite the legend that doctors are targets for frivolous malpractice claims, decades of research on the subject shows that jury verdicts generally reflect fair assessment of damages and negligence, and that juries are skeptical about overinflated damages awards. The vast majority of malpractice cases are settled before trial.