The 10 Most Scariest Things About Medical Malpractice Attorneys
How to File a Medical Malpractice Lawsuit
Many medical malpractice lawsuits require significant time and resources from both physicians and attorneys. This investment covers physician time and work product and attorney time, court costs, expert witness fees, and many other costs.
A medical malpractice claim may be filed in the event that a healthcare professional has been negligent or has committed misconduct or erred, or failed to act. Injury victims can seek compensation for financial losses, such as future or past medical bills and also non-economic damages, such as discomfort and pain.
Complaint
A medical malpractice claim is a complex matter and requires credible proof for success. The injured patient or their lawyer in the event that the patient has passed away, must show each of these legal elements:
That a doctor or hospital was bound to follow the applicable standard of care. The defendant violated that duty. The breach directly caused injury for the plaintiff. This aspect of a malpractice claim is known as "causation." A breach of the standard of care does not cause an injury, but it must be shown that the breach directly caused the injury and was the direct cause of the injury.
It is sometimes necessary to file a complaint with a state medical body in order to protect the patient's rights and ensure that the doctor doesn't commit any further negligence. However, filing a claim does not start the process of a lawsuit, and is typically just a step towards moving the malpractice claim. It is recommended to talk with an Syracuse malpractice attorney prior to filing any report or document.
Summons
As part of the legal process the summons or claim form is filed with the court and handed to the doctor who is the defendant. A lawyer appointed by the court on behalf of the plaintiff will review the documents and, if it is found that there is an issue with malpractice, they will file a complaint along with an affidavit to the court detailing the medical error that they believe to have committed.
The next step in the legal process is obtaining evidence through pretrial discovery. This includes the submission of requests for documentation like hospital billing and clinic notes, as well as taking the deposition of the doctor who is defending the case. Attorneys then will question the defendant under oath regarding their knowledge of the case.
The attorney representing the plaintiff will use this information to prove the elements of a medical negligence claim during trial. These include the existence of an obligation on the doctor's part to provide treatment and treatment to patients; the doctor's breach of this duty a causal relationship between the breach and the patient's injuries or death and a sufficient amount of damages resulting from the injury or death to warrant a monetary award for compensation.
Discovery
During the discovery phase where both parties are permitted to request evidence relevant to their case. This includes medical records prior to and after the incident of an alleged malpractice, details about experts as well as copies of tax returns or other documents relating to out-of-pocket expenses the plaintiff claims they incurred, as well as the names and contact information of any witnesses who are scheduled to be present at trial.
Most states have a statute-of limitations that restricts the time a patient has to pursue a lawsuit after being injured due to a medical mistake. Those time limits are usually set by law of the state, and are subject to rules referred to as the "discovery rule."
To prevail in a medical negligence case the injured person must show that a doctor's negligence caused a specific harm for example, physical pain or loss of income. They must also prove causation i.e. that the negligent treatment led to their injury or death.
Deposition
Depositions are sessions of question and answer that are conducted in the presence a court reporter, who records the questions as well in the responses. Depositions are part of the discovery process through which parties collect information to be used in the trial.
Depositions permit attorneys to question witnesses, often doctors to answer a set of questions. If a doctor is deposed to testify, he or she must answer the questions truthfully under an oath. Usually the physician is asked questions by one attorney, and then cross-examined by a different attorney. This is an important stage of the process and requires the full attention and focus of the physician.
A deposition is an excellent way for attorneys to get a detailed background of the doctor, including his or the doctor's education, training and experience. This information is essential for establish that the doctor violated the standard of care in your situation and that the breach caused you injury. For instance, doctors who have received training in the field of malpractice cases will typically declare that they have a vast experience in the execution of specific procedures and techniques that could be relevant to a specific medical malpractice claim.
Trial
Your lawyer will submit a complaint to the court and issue a summons. This starts the process of legal disclosure known as discovery. You and your doctor's team will work together in order to gather evidence that can prove your case. The evidence typically comprises medical records and testimony of an expert witness.
The goal of proving negligence is to establish that the actions of your doctor fell short of the standard of care. Your lawyer must convince a jury that it is more likely than not your injuries wouldn't have occurred if your physician acted according to the standards of care. Your doctor's lawyer will offer arguments that are contrary to the evidence presented by your lawyer.
Despite the belief that doctors are targets for frivolous malpractice claims decades of empirical research shows that jury verdicts generally reflect fair assessments of negligence and damages and that juries are skeptical about inflated damage awards. The vast majority of malpractice cases settle prior to trial.
