The 10 Most Scariest Things About Medical Malpractice Attorneys

How to File a Medical Malpractice Lawsuit

Lawyers and doctors must spend a significant amount of time and money in many medical malpractice lawsuits. This investment includes physician hours and work product attorneys' time court costs, expert witness fees, and many other costs.

An injury caused by the negligence of a healthcare professional's incompetence, error or omission can lead to a medical malpractice claim. Plaintiffs seeking compensation for their injuries can seek damages, which include economic losses, such as future and past medical bills, as well as non-economic damages like pain and suffering.

Complaint

A medical malpractice case is complex and requires credible proof to be successful. The injured patient (or their attorney if they've died) must prove each of the following legal aspects of the case:

The defendant breached that duty. The defendant breached this duty. That the breach directly caused injury to the plaintiff. This element is known as "cause". A breach of a standard of care will not cause injury on its own. It must be proven that it directly caused the injury and was the primary reason for the injury.

It is sometimes required to file a complaint with a state Medical malpractice attorney board to protect the rights of the patient and to ensure that the doctor does not commit additional negligence. A report is not a lawsuit, however, it is an excellent first step in initiating the malpractice lawsuit. It is recommended to speak with a Syracuse malpractice lawyer prior to filing a report, or any other type of document.

Summons

As part of the legal procedure, an order or claim form is filed with the court and then handed to the doctor who is the defendant. A plaintiff's lawyer who is appointed by the court will go through the documents. If it appears there is a malpractice issue the lawyer is required to file an affidavit as well as a complaint with the court, describing the alleged error.

The next step in the legal process is obtaining evidence through pretrial discovery. This involves submitting requests for documentation like hospital billing information and clinic notes and taking the defendant physician's deposition during which lawyers ask the defendant on his or her knowledge of the case under oath.

The information provided will be used by the plaintiff's lawyer to prove the elements of a claim for medical negligence at trial. This includes the existence of an obligation on the doctor's part to provide care and treatment to patients; the physician's breach of this duty; causality between the breach and the patient's injury or death and a sufficient amount of damages resulting from the accident or death to justify a monetary award of compensation.

Discovery

During the discovery phase, both parties are allowed to request evidence relevant to their case. This includes medical records from prior to and after an incident of alleged negligence, information regarding experts and tax returns or other documentation related to out-of-pocket expenses that the plaintiff claims have been caused, and the names and contact information of any witnesses who will be testifying at trial.

The majority of states have a statute of limitations which limits the amount of length of time that a patient is allowed to seek compensation for injuries caused by an error in medical care. The time limit is set by the laws of the state and are subject to a rule called the "discovery rules."

To win a medical malpractice case the patient who was injured must prove that a doctor's negligence caused a specific harm that is physical pain or loss of income. They must also prove causationmeaning, that the negligent treatment was the sole reason for their injuries or death.

Deposition

Depositions are question-and-answer sessions conducted in the presence of a court reporter who documents both the questions and responses. The deposition is a part of the process of discovery in which parties gather information to use in a trial.

Attorneys may ask a series of questions to witnesses, typically doctors. When a physician is questioned by a lawyer, the doctor must answer the questions truthfully under an oath. Usually, the physician is first interrogated by an attorney before being interrogated by a different attorney. This is a crucial stage of the case that requires the full concentration and attention of the doctor.

A deposition is a way for attorneys to get a complete background on the doctor's qualifications in relation to his or her education, training and experience. This information is essential to prove that the doctor did not meet your standard of care and caused you harm. Physicians who have been educated in the area will often be able to prove they have experience performing specific procedures and techniques that may be relevant to a specific medical malpractice case.

Trial

A lawsuit in a civil court is officially initiated when your lawyer is able to file a complaint as well as a summons with the court of your choice. This initiates a legal process of disclosure, referred to as discovery where you and the doctor's team work together to gather evidence to support your case. This evidence typically includes medical records and the testimony of expert witnesses.

The goal of proving malpractice is to prove that your physician's actions did not meet the standards of care. Your lawyer must convince jurors that it is more likely than not that your injuries could not have occurred had your doctor acted in accordance with the standards of care. Your doctor's lawyer will offer defenses that go against the evidence presented to you by your attorney.

Despite the legend that doctors are a target for malpractice claims that are frivolous, decades of research on the subject shows that jury verdicts generally reflect fair assessments of negligence and damages, and juries are skeptical of inflated damage awards. The vast majority of malpractice cases are settled prior to trial.