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How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits can be a little complicated. There are certain rules that must be followed including a time limit within which the suit may be filed.

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

Complaint

Your attorney will file a court complaint and summons after he has discovered evidence of negligence. The complaint will identify the defendants in your case and outlines the allegations you are making against them.

Malpractice claims are founded on the premise that nurses, doctors or other healthcare providers owe a patient an appropriate level of care. This is defined as the level of expertise and prudence that a reasonably prudent medical professional with similar training would exercise in similar circumstances. Your legal team will have to show that your doctor did not meet this standard which resulted in injuries from which you sustained damages quantifiable.

It can be challenging to prove that a doctor's standards are the same as another doctor's. It is important to hire an attorney who has access to experts in the field of medicine to testify about what a competent professional would have done.

It is not just physicians who make mistakes in their medical practice; hospital personnel, including nurses and anesthesiologists, also can commit malpractice. This is especially applicable to emergency room staff where mistakes are often caused by a busy atmosphere and overworked personnel. Your lawyer may be able obtain evidence from experts in the emergency room who can explain what could have been done and how the actions of your doctor did not meet this standard.

Discovery

During the discovery phase the attorney will collect and look over evidence that might support a malpractice claim. This could include medical records, witness statements, as also expert testimony. The information may also be requested by the opposing legal team. This is done by interrogatories or requests for documents. Certain documents could be classified as confidential or privileged due to 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 since it requires expert evidence to support your claim.

Your lawyer will also interview witnesses that can prove that the doctor was negligent. This could include assistants, nurses, radiologists, dentists and other personnel who were involved in your care. Your lawyer will know how to take powerful and effective depositions in order to get witnesses to admit that the doctor was negligent.

Most lawsuits are settled, or settled before they reach the trial stage. In medical malpractice cases this is the most common as the costs of going to trial can be expensive. Once the facts are established and you have a chance to negotiate a settlement with the doctor's insurer. If a settlement isn't possible the case will proceed to trial.

Trial

When your lawyer has completed the initial investigation and concludes that you have a strong malpractice case they will file the complaint. This will clearly outline the allegations and must be delivered to the defendant in the summons.

The next phase is discovery. This includes the exchange of medical records 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 prove that the error was a result from the negligence of the doctor that resulted in damages.

Your medical malpractice lawyer will also work with one or more expert witnesses to prove your claim. These experts will be given medical records as well as detailed information regarding your case in order to prepare for their deposition and testimony. They may also assist in preparing your case for trial.

Your lawyer will begin settlement discussions with the defense as part of the preparation for trial. This process is ongoing throughout the trial, malpractice lawyers and can take up to years. In this time, it is likely that you'll be recovering from your injuries and 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 lawyer will carefully weigh the advantages of a settlement offer against your present and long-term recovery. If the settlement proposal is reasonable and fair, then your lawyer will be able to convince you to accept it.

Damages

During the discovery phase, plaintiffs need to show that their losses are significant and that the negligence of the defendant has contributed to the damages. For instance, if the doctor did not inform the patient that a surgery was a 30 percent risk of losing a limb, and the procedure was carried out perfectly but the patient lost their arm, the medical professional may be liable for malpractice.

To be able to bring a valid legal action, the defendant must also prove that a competent lawyer would have been able to reduce their financial loss, or at least minimize the amount. This is sometimes referred to the "but for test". Additionally, it is necessary to demonstrate that the plaintiff was liable for costs to pursue a successful legal claim that are more than the amount demanded as compensation.

Our medical malpractice lawyers can explain the different types of damages caused by a malpractice lawsuit including past, present and foreseeable medical expenses loss of income, suffering and pain and suffering, and other economic and non-economic losses. The higher the amount is, the more serious injury. A successful verdict may be overturned through an appeal. Settlements outside of court may be advantageous for some clients. It can save time and money in litigation costs, aswell as avoiding the risk of having a jury judge a case based on the basis of emotions instead of fact.