How to File a Medical Malpractice Lawsuit

Medical malpractice suits are complicated. There are certain guidelines to be followed, which include the time frame within which a lawsuit can be filed.

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

Complaint

Your attorney will submit a court complaint as well as summons if he or she has discovered evidence of malpractice. The complaint will identify the defendants, and then state the allegations against them.

Malpractice claims are based on the premise that nurses, doctors, or other healthcare professionals owe patients an appropriate level of care. This is the amount of competence and prudence that an appropriately prudent doctor who has similar training would apply in similar circumstances. Your legal team has to prove that your doctor did not adhere to this standard and caused you to suffer quantifiable injury.

A doctor's standard of care is usually an issue of opinion and is difficult to prove. This is why it is crucial to choose a law firm with access to experts who can provide testimony about the medical field and what a reasonable professional in the same situation as your doctor would have done.

Not only doctors can make mistakes, but so can hospital personnel, such as anesthesiologists and malpractice attorney nurses. This is especially relevant to emergency room personnel where mistakes are usually caused by a hectic environment and overworked employees. Your lawyer may be in a position to obtain an expert witness from the emergency room staff who can show what could have been done differently and how your doctor failed to meet the standards.

Discovery

In the discovery phase the attorney will gather and review evidence that could help in proving a malpractice case. This includes medical documents, witness statements, expert testimony, and more. The information may be requested by the opposing legal team. This is typically done via interrogatories and requests for production of documents. Certain documents could be privileged or confidential due to privacy laws such as HIPAA and its Privacy Rule.

You must also prove that your injury was caused by the doctor's negligence. This is the most difficult aspect of a case involving medical negligence as it requires an expert testimony to support your claim.

Your lawyer will also depose witnesses who can prove the doctor's negligence. This could include nurses, assistants, radiologists, dentists and others who were involved in your treatment. Your lawyer will be proficient in taking effective and convincing depositions to get these witnesses to admit that the doctor was negligent.

Most lawsuits are resolved, or settled, before they get to the trial stage. For medical malpractice law cases this is the most common due to the fact that going to trial can be expensive. After the facts of your case are established, a settlement could be negotiated between you and the insurance company for the doctor. If a settlement is not reached, your case could go to trial.

Trial

After your attorney completes the initial investigation and concludes that you have an excellent malpractice case, they will file the complaint. The complaint will be clear in its allegations and must be served on the defendant, along with a summons.

The next step is discovery. The next phase involves discovery. This involves the exchange and deposition of witnesses. Your lawyer will make use of these statements to prove your doctor's breach of standard of care. The aim is to prove that the error was the result of the doctor's negligence and resulted in damages.

Aside from the witness statement, your medical malpractice attorney will work with a couple of expert witnesses to support your claim. They will be provided with medical records and all the details regarding your case in order to prepare for their testimony and deposition. They may also aid in the preparation of your case for trial.

As part of the preparation for trial your attorney will begin negotiations for settlement with the defense. The process continues throughout the course of the trial and can take up to years. During this period, you'll be recovering from your injuries and determining the amount and value of your damages. When possible, it's in everyone’s best interest to avoid litigation and settle outside of court. Your lawyer will carefully weigh the merits of a settlement against your current and long-term recovery. If the settlement offer is reasonable and fair, then your lawyer will advise you to accept it.

Damages

During the discovery process Plaintiffs must demonstrate that their losses were significant and that the negligence of the defendant caused those damages. For example, if the doctor failed to inform the patient of the 30 percent likelihood that the procedure will result in the loss of a arm, and the operation was flawless, but the patient lost an arm and limb, then the medical professional could be held liable for malpractice litigation.

A victim could also prove that a competent lawyer could have prevented or minimized the financial loss. This is commonly referred as the "but for" test. Additionally, it is essential to prove that the plaintiff incurred costs to pursue a successful legal claim that are greater than the amount sought as compensation.

Our medical malpractice lawyers are able to provide an explanation of the different types of damages that may be given in a malpractice lawsuit which include past, present and future medical expenses as also lost income and pain and discomfort and other economic or non-economic loss. The greater the amount of money awarded is, the more serious injury. However, a ruling that is successful can sometimes be overturned when appealed. Settlements outside of court may be advantageous for some clients. It can save money and time in litigation fees. It also reduces the risk of having a jury ruling on a case based upon emotion instead of fact.