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How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits can be a bit complicated. There are certain guidelines to be followed including a time limit within which the suit may be filed.

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

Complaint

When your attorney's inquiry has discovered evidence of malpractice occurred, he or she will file a complaint with the court along with a summons. The complaint identifies the defendants in your case, and clearly outlines the allegations you are making against them.

Malpractice claims are based on the idea that a doctor or nurse or any other healthcare professional owes a patient a standard of care. This standard is defined as the degree of care and skill that a reasonable medical professional trained similarly would exercise in similar circumstances. Your legal team must show that your doctor violated this standard and caused you to suffer harm.

The standard of care for a doctor is often an issue of opinion, and can be difficult to prove. This is why it is important to work with a legal firm that has access to experts who can provide testimony about the medical field and what an experienced professional in the same situation as your doctor would have done.

Not only doctors can make mistakes, but so do hospital personnel, like anesthesiologists and nurses. This is especially relevant to emergency room personnel where mistakes are frequently due to a crowded environment and overworked employees. Your lawyer may be able to obtain testimony from experts in the emergency room who can help demonstrate the proper procedure and why your doctor's actions fell short of this standard.

Discovery

During the discovery process the attorney will collect and examine evidence that may support a malpractice claim. This includes medical records, witness statements, expert testimony, and more. The legal team of the other side can also have the chance to obtain this information from you and your attorney. This is accomplished through interrogatories or requests for documents. Certain documents could be classified as confidential or privy because of privacy laws, such as HIPAA and its Privacy Rule.

You must also prove that your injury is due to negligence by the doctor. This is the most difficult aspect of a medical negligence case as it requires expert witness testimony that proves your claim.

Your lawyer will also depose any witnesses that can prove that the doctor's actions were negligent. This could include assistants, nurses, radiologists, dentists and other personnel who were involved in your treatment. Your lawyer will know how to conduct powerful and convincing depositions in order to get these witnesses admitting that the doctor's negligence.

The majority of lawsuits are resolved or settled, before they get to the trial stage. This is particularly common in medical malpractice cases because the costs involved in the trial process can be expensive. Once the facts are established then you can negotiate a settlement with the insurance company that covers the doctor. If a settlement isn't attainable, your case will then go to trial.

Trial

Your lawyer will file a formal complaint after conducting the initial investigation. If they find that you have a compelling case for malpractice, then they will file the complaint. This will clearly outline the allegations and will be given to the defendant along with the summons.

The next stage is discovery. This involves the exchange of medical records as well as depositions of witnesses. Your lawyer will make use of these statements to establish your doctor's breach of the standard of care. The goal is to establish that the error was the result of the negligence of the doctor, and caused damages.

Apart from the witness's statement, your medical malpractice attorney will work with one or two expert witnesses to support your claim. They will be provided with medical records and detailed information about your case to prepare for their deposition and testify. They may also help prepare your case for trial.

As part of the preparation for trial your lawyer will start negotiations for settlement with the defense. This process can last for many years. During this time, you'll be recovering from your injuries while determining the amount and value of your damages. If possible, it's in everyone’s best interest to avoid litigation and settle out of court. Your attorney will carefully assess the merits of any settlement proposal with your current and future recovery. If the settlement seems reasonable your lawyer will convince you to accept it.

Damages

During the process of discovery the plaintiffs must prove that their losses were significant and that the negligence of the defendant contributed to the damages. If, for example, 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 an arm or limb, the doctor may be held accountable for negligence.

A victim may also demonstrate that a skilled lawyer could have prevented or mitigated the financial loss. This is commonly referred as the "but for" test. It is also essential to prove that the plaintiff incurred costs to pursue a legal claim, that is greater than the amount they seek in compensation.

Our medical malpractice lawyers can provide a detailed explanation of the various types of damages suffered in a malpractice lawsuit including past, present and foreseeable medical expenses and lost income, as well as pain and suffering and other economic and non-economic losses. The more money you are awarded the more serious the damage. However, a verdict that is deemed to be a success is sometimes overturned on appeal. Settlements outside of court could be beneficial to some clients. It will save time and money in costs for litigation, as well as avoid the potential risk of having a jury decide an issue on the basis of emotion rather than fact.