How to File a Medical Malpractice Lawsuit

Medical malpractice suits are complicated. There are specific guidelines to follow, including a deadline within which the lawsuit can be filed.

The plaintiff must also prove that the doctor's actions caused injuries and losses. This will require hospital and medical documents.

Complaint

Your lawyer will make a court complaint and summons if he or she has found evidence of malpractice. The complaint identifies the defendants in the case and outlines the allegations that you are making against them.

The basis for malpractice claims is the notion that a doctor or nurse or any other healthcare provider owes the patient a certain standard of care. This is defined as the level of skill and caution that a reasonable medical professional with similar training could exercise in similar situations. Your legal team has to prove that your doctor violated this standard and caused you to suffer harm.

A doctor's standard of care is usually a matter of opinion, and can be difficult to prove. It is essential to find an attorney who has access to experts in the medical field to provide evidence of what a professional of reasonable standards would have done.

It's not just physicians who make mistakes in their medical practice; hospital staff members, like nurses and anesthesiologists can be liable for malpractice. This is particularly true for emergency room staff, as mistakes are often attributed to a chaotic environment and overworked employees. Your lawyer could be in a position to secure an expert witness from the emergency room staff who can show what should have happened and how your doctor failed to meet the standard.

Discovery

During the discovery phase, your attorney will gather and review evidence that could provide evidence to support a claim for malpractice. This includes medical records, witness statements expert testimony, and more. The other side's legal team can also have the chance to request this information from you and your attorney. This is typically done through interrogatories and requests for production of documents. Certain materials may be privileged and private due to privacy laws, like HIPAA's Privacy Rule.

You must also prove that your injury was caused by the negligent doctor. This is the most difficult aspect of a medical malpractice case, as it requires expert testimony to support your claim.

Your lawyer will also depose any witnesses that can prove the negligence of the doctor. This can include assistants, nurses, radiologists, dentists and others who were involved in your care. Your attorney will know how to conduct effective and strong depositions in order to get witnesses to accept that the doctor was negligent.

The majority of lawsuits are settled prior to trial. This is particularly common in medical malpractice cases as the costs involved in trial can be expensive. Once the facts of your case have been established, a settlement could be agreed upon between you and the insurance company of the doctor. If a settlement cannot be reached your case will go to trial.

Trial

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

Discovery is the next step. The next phase is discovery. This includes the exchange and depositions of witnesses. Your lawyer will make use of these evidences to prove the doctor's breach of standard of care. The goal is to establish that the error was the result of the negligence of your doctor, and caused damages.

In addition to the witness statement, your medical malpractice attorney will work with a couple of experts to support your claim. They will be provided with medical records and specific information regarding your case to prepare for their deposition and testify. They may also help prepare your case for trial.

Your attorney will begin negotiations with the defense during the trial preparation. This process is ongoing throughout the trial, and malpractice attorney can sometimes last for years. During this time period, you are recovering from your injuries and determining how much of your injuries. If possible, it's beneficial for everyone 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 seems reasonable and fair, then your lawyer will be able to convince you to accept it.

Damages

During the process of discovery, plaintiffs must show that their losses were substantial and that the negligence of the defendant contributed to the damages. For example, if the doctor failed to inform the patient that a surgical procedure was associated with a 30 percent chance of losing a limb. If the procedure was completed perfectly but the patient lost their arm in the process, the medical professional could be liable for malpractice.

In order to be able to file a valid malpractice lawsuit, the person who is suing must also prove that a competent attorney could have been able prevent their financial loss or at least reduce the size. It is sometimes referred to the "but for test". It is also important to show that the plaintiff has paid for expenses in the pursuit of a successful legal claim, which are more than the amount sought in compensation.

Our medical malpractice lawyers can explain the different types of damages sustained in a malpractice lawsuit including future, present and past medical expenses, lost income, pain and suffering and other economic and non-economic losses. In general, the more severe the injury, the greater the amount of compensation. A verdict that is successful could be rescinded by appeal. So, settling out of court can be a viable option for some clients. It can save money as well as time on litigation costs. It also helps avoid the risk of a juror deciding a case based on emotion instead of fact.