How to File a Medical Malpractice Lawsuit
Medical malpractice lawsuits are complex. There are certain guidelines to follow, such as a deadline within which a lawsuit can be filed.
In addition to showing negligence, the claimant must show that the actions of the doctor led to injuries and losses. This will require hospital and medical records.
Complaint
After your attorney’s investigation has discovered evidence of malpractice occurred, the attorney will file a lawsuit in court, along with a summons. The complaint will identify the defendants and make the allegations you bring against them.
Malpractice claims are founded on the idea that nurses, doctors, or other healthcare providers are obligated to a patient the same level of care. This standard is defined as the degree of skill and caution that a reasonably prudent medical professional with similar training would exercise in similar circumstances. Your legal team needs to show that your doctor violated this standard which resulted in injuries from which you sustained quantifiable damages.
It can be challenging to prove that a physician’s standards are comparable to another doctor’s. It is important to hire an attorney who has access to experts in the field of medicine to provide proof of what a reasonable doctor would have done.
Not only doctors make mistakes, but so can hospital personnel, such as nurses and anesthesiologists. This is especially applicable to emergency room staff where mistakes are made due to a busy environment and overworked employees. Your attorney might be able to get testimony from experts in the emergency room who can help demonstrate the correct procedure and how the actions of your doctor fell short of this standard.
Discovery
During the discovery process, your attorney will collect and examine evidence that could help in proving a malpractice case. This could include medical records, witness statements as in addition to expert testimony. This information can be requested by the legal team opposing the case. This is typically done through inquiries and requests for production of documents. However, certain documents may be privileged or confidential due to privacy laws like HIPAA and its Privacy Rule.
You must also prove that your injury was caused by the medical professional’s negligence. This is the most challenging aspect of a medical malpractice claim because it requires expert witness testimony that supports your claim.
Your lawyer will also call any witnesses that can prove the negligence of the doctor. This could include radiologists, dentists nurses, assistants, nurses and other people who were involved in the treatment of your health. Your lawyer will know how to conduct powerful and convincing depositions in order to get witnesses to accept that the doctor’s negligence was a factor.
Most lawsuits are settled before they go to trial. In the case of medical malpractice it is a common practice since the cost of going to trial can be quite expensive. Once the facts of your case have been established, a settlement can be discussed between you and your insurer of your doctor. If a settlement isn’t reached, your case could be heard in court.
Trial
Your attorney will file a complaint after having completed the initial investigation. If they decide that you have a solid case of malpractice attorneys, 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. This involves the exchange of medical records as well as depositions from witnesses. Your lawyer will make use of the statements to prove that the doctor acted in violation of the standard of care. The aim is to demonstrate that the error was caused by the negligence of your doctor, and caused damage.
In addition to the witness’s testimony, your medical malpractice attorney will also work with two or more experts to support your claim. These experts will be given medical records and specific information about your case to prepare for their deposition and testimony. They may also assist in preparing your case for trial.
As part of the trial preparation your attorney will begin negotiations for settlement with the defense. The process continues throughout the course of the trial and can last for many years. In this time, you will be recovering from your injuries while determining the size and amount of your losses. It’s in everyone’s best interest to settle the matter out of court whenever possible. Your attorney will carefully compare the merits of any settlement offer against your current and potential recovery. If the settlement offer is reasonable and fair, then your lawyer will encourage to accept it.
Damages
During the process of discovery plaintiffs must demonstrate that their losses were substantial and that the negligence of the defendant caused the damages. For instance, if the doctor failed to inform the patient of the 30 percent chance that the procedure could result in the loss of arm, and the operation was perfect but the patient lost a limb in the process, then the medical professional could be held responsible for malpractice.
To be able to bring a valid malpractice suit, the plaintiff must also prove that a competent lawyer could have been able stop their financial loss or at least minimize its size. This is sometimes called the “but for test”. It is also important to show that the plaintiff was liable for costs to pursue a successful legal claim that is in excess of the amount sought for compensation.
Our medical malpractice lawyers are able to explain the various types of damages that could be granted in a malpractice case that include past, current and future medical expenses as along with lost income, pain and discomfort, and other economic or non-economic loss. The more money you are awarded the more serious the injury. A decision that is found to be a success could be overturned through an appeal. So, settling outside of court could be a beneficial option for certain clients. It can save money and time in court costs. It also avoids the risk of having a jury ruling on a case based upon emotion instead of fact.