How to File a Medical Malpractice Lawsuit
A medical malpractice lawsuit against a doctor or hospital requires proof that the defendant acted in breach of his or her obligation to patients. This evidence could be a hospital and medical records.
Our attorneys have extensive experience in taking effective depositions. They could be doctors, other medical professionals who are in private practice, or working at a clinic or hospital.
Negligence
When a patient visits a doctor, hospital or health care professional is entitled to certain standards of medical treatment. In some instances, these standards are not being met or even breached. This can cause devastating consequences.
When someone is injured or death as a result of a doctor’s negligence, they can sue the medical professional. To establish a case the patient who has been injured must prove four legal elements that include breach of duty, breach of duty, causation and damages.
Malpractice is defined as an act or omission committed by the physician that goes against the accepted norms of practice within the medical profession, and can cause injury to the patient. It is a subset of tort law that addresses civil wrongs that are not contractual duties or criminal offenses.
Medical negligence is different from regular negligence in that the person who is injured has to prove that the doctor was aware, or should have known that their actions were likely to cause harm before they can claim malpractice. Normal negligence does not. For instance, a surgeon who accidentally cuts a vein or nerve during surgery could be found considered negligent, but not malpractice because the doctor didn’t intend to cause harm.
In the event of a medical malpractice lawsuit the defendant’s responsibility is to provide the patient with the standards of care that a reasonably competent health professional with similar experience and education would provide in similar circumstances. The breach of duty is crucial since it establishes that the negligence alleged caused the injury.
Damages
The damages you incur in a case of malpractice are in relation to the losses you sustained as a result of a doctor’s negligence. This could include financial losses, such as future medical costs, as well as non-economic damages such as discomfort and pain.
In order to obtain damages, it is essential to prove that a doctor violated the duty of care and that his deviance from the standard of care caused injury, and that the injury caused financial harm that was quantifiable. This is a complicated legal analysis that typically requires expert witness testimony.
Some of these losses can be seen in a matter of minutes, for instance the case where a doctor’s error caused an infection or other medical complications which required additional treatment. Other losses are not as obvious, for instance if your doctor misdiagnoses you and you’re unable to get the correct treatment.
You are able to sue for wrongful-death if your doctor’s negligence causes your death. You may be able to claim punitive damages in addition to the compensation you would receive in a survival suit.
In the majority of states, there are limits on the amount you can recover in a malpractice case. These caps vary from state to state and are usually applicable to both financial and other damages. Some states have laws that limit the length of time you can wait before filing a lawsuit.
Time Limits
As with any lawsuit there are time limits which must be observed or the case may be barred. Generally speaking, a medical malpractice lawsuit must be filed within two to six years from the medical malpractice arising. The time frame varies by state.
The time frame can be complicated and it is important to consult an attorney immediately. The law firm will conduct an investigation to determine if there were any mistakes and whether the case will stand up in the court. This stage takes weeks or even months.
Medical malpractice lawsuits cases are governed by different laws, and the statute of limitations is often altered. For example, in Pennsylvania patients must make a claim within two years from the day they discovered the malpractice or that a reasonable person would have recognized that the harm existed. This is known as the discovery rule.
In some states the statutes of limitations begin to expire on the date when the medical error occurred. This could be an issue when the mistake does not immediately trigger symptoms. For instance, suppose a doctor negligently leaves a foreign object in the body after surgery. The patient may not be aware of the object until three years after the surgery. In this scenario, the statutes of limitations may have started at the time of the procedure, not necessarily the moment of discovery.
Expert Witnesses
Expert witnesses are often required to explain facts in medical malpractice cases. A plaintiff’s expert will testify regarding the duty of the doctor to the patient, the medical guidelines for doctors with similar qualifications in the same area as well as the specific ways in which the defendant departed from the standard. The expert will explain how the departure directly contributed to the injury of the patient.
The defendant will engage a professional to counter the plaintiff’s expert, and give their professional opinion about whether the doctor was in compliance with the standards of care. Experts could differ, but the fact-finder decides which expert is the most trustworthy.
It is preferential for the expert to remain working in the medical field because they are more knowledgeable about the current practices. Judges and jurors typically consider practicing professionals more believable than experts whose only source of income is testimony in court.
It is also advisable to hire an expert who specializes in the area of malpractice. A medical expert who has had experience treating breast cancer for instance, can provide an argument convincingly as to the cause of an injury. A knowledgeable Ocala medical malpractice attorney will be aware of the experts to call for your case.