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How to File a Medical Malpractice Lawsuit

Medical malpractice suits are complex. There are certain guidelines that must be met including a time limit within which the suit could be filed.

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

Complaint

Once your attorney’s investigation has uncovered evidence that malpractice occurred, he or she will file a formal complaint in court, along with summons. The complaint will identify the defendants, and then state the allegations against them.

The basis for malpractice claims is the idea that a doctor or nurse or other healthcare professional owes a patient a certain standard of care. This standard is defined as the amount of competence and care that a reasonably prudent medical professional with similar training would exercise in similar circumstances. Your legal team has to show that your doctor violated this standard which resulted in injuries from which you suffered quantifiable damages.

A physician’s standard of care is often an issue of opinion, and is difficult to prove. It is important to hire an attorney who has access to experts in the medical field to provide evidence of what a professional of reasonable standards would have done.

Not only physicians can make mistakes, but so can hospital staff, including nurses and anesthesiologists. This is especially true for emergency room staff where mistakes are frequently made due to a busy atmosphere and overworked personnel. Your lawyer could be in a position to secure experts from emergency room staff who can show what could have been done differently and why your doctor was unable to meet the standards.

Discovery

During the discovery phase the attorney will collect and examine evidence that may support a malpractice claim. This could include medical records, witness statements, as also expert testimony. The information may be requested by the opposing legal team. This can be done via interrogatories or requests for documents. Certain documents could be privileged or confidential due to privacy laws such as HIPAA and its Privacy Rule.

It is also necessary to prove that your injury was caused by the negligent doctor. This is the most difficult element of a case involving medical negligence, as it requires expert testimony to support your claim.

Your lawyer will also question witnesses who can prove that the doctor’s actions were negligent. This can include assistants, nurses radiologists, dentists, and others who were involved in your treatment. Your lawyer will be proficient in preparing strong and persuasive depositions to convince these witnesses to admit that the doctor was negligent.

The majority of lawsuits are resolved or settled before they reach the trial stage. In medical malpractice cases, this is especially common because the cost of going to trial can be expensive. After the facts of your case are established, a settlement can be reached between you and the insurance company of the doctor. If no settlement can be reached, your case could go to trial.

Trial

Your lawyer will file a complaint following completing the initial investigation. If they conclude that you have a compelling case for malpractice, they will file it. The complaint will clearly state your allegations and will be served to the defendant along with a summons.

Discovery is the next stage. This includes the exchange of medical records and depositions of witnesses. Your lawyer will make use of these statements to prove the doctor’s breach of standard of care. The goal is to show that the error was caused by the negligence of the doctor and resulted in damages.

Apart from the witness’s statement Your medical malpractice lawyer will work with two or three experts to support your claim. They will be provided with medical records and Malpractice lawyer specific information about your case to prepare for their deposition and testify. They may also assist in preparing your case for trial.

As part of the trial preparation your lawyer will start settlement negotiations with the defense. This process can last for several years. During this time, you are recovering from your injuries and determining the extent of your damages. It’s in everyone’s best interest to settle your case outside of court and avoid litigation whenever possible. Your lawyer will carefully consider the merits of any settlement offer against your current and future recovery. If the settlement proposal is reasonable, then your lawyer will advise you to accept it.

Damages

During the discovery phase, plaintiffs be required to prove that their losses are substantial and that the negligence of the defendant contributed to these damages. For example, if the doctor failed to inform the patient of the 30 percent chance that the procedure could result in the loss of a leg, and the surgery was flawless, but the patient lost an arm in the process, then the medical professional could be held accountable for malpractice.

To be able to bring a valid legal action, the defendant must also show that a competent lawyer could have helped reduce their financial loss, or at least minimize the amount. This is often referred to as the «but for test». It is also essential to prove that the plaintiff has incurred expenses in the pursuit of a legal claim that is greater than the amount sought for compensation.

Our medical malpractice lawyers can explain the various forms of damages that could be suffered in a malpractice lawsuit including the past, present and future medical expenses loss of income, suffering and pain and suffering, and other non-economic losses. The greater the amount of money awarded is, the more serious injury. However, a decision that is successful may be rescinded in appeal. So, settling out of court could be a beneficial option for a few clients. It will help save time and money on court costs, as well as avoiding the possibility of having a jury decide an issue on the basis of emotion instead of fact.