How to File a Medical Malpractice Lawsuit
Medical malpractice lawsuits can be very complicated. There are specific rules that must be followed including a specified time period within which the suit may be filed.
In addition to showing negligence, the claimant must prove that the actions of the doctor led to injuries and losses. This will require medical and hospital documents.
Complaint
When your attorney’s inquiry has uncovered evidence that malpractice occurred, he or she will file a lawsuit in court along with summons. The complaint names the defendants in the case and outlines the allegations that you are making against them.
Malpractice claims are based on the notion that doctors, nurses or other healthcare professionals owe patients the same level of care. This standard is defined as the degree of care and skill that a reasonably prudent medical professional with the same training would exhibit in similar situations. Your legal team must prove that your doctor violated this standard and caused you to suffer harm.
It can be a challenge to prove that a doctor’s standard is the same as another doctor’s. This is why it is important to hire a law firm with access to experts who can testify about the medical field and what an experienced professional in your doctor’s position would have done.
It’s not just doctors who make mistakes, but so do hospital staff, such as nurses and anesthesiologists. This is especially true of emergency room staff, where mistakes are frequently made due to a hectic atmosphere and overworked employees. Your lawyer may be in a position to get an expert opinion from the emergency room staff who can demonstrate the circumstances that led to the incident and why your doctor was unable to fulfill this standard.
Discovery
During the discovery process your lawyer will gather and examine evidence that may support a malpractice claim. This includes medical records, witness statements as and expert testimony. The information may also be requested by the opposing legal team. This is typically done via interrogatories as well as requests for production of documents. Certain materials could be protected and private due to privacy laws, such as HIPAA’s Privacy Rule.
You must also prove that your injury is due to the negligence of your doctor. This is the most challenging aspect of a medical malpractice case since it requires expert witness testimony that supports your claim.
Your lawyer will also call witnesses who can prove the doctor’s negligent actions. This could include radiologists dentists as well as nurses, assistants and other people who were involved in the treatment of your health. Your attorney will be skilled in taking effective and convincing depositions to get these witnesses to admit that the doctor’s negligence was not their fault.
Most lawsuits are resolved, or settled before they reach the trial stage. This is especially true in medical malpractice cases because the costs associated with a trial can be very high. Once the facts of your case have been established, a settlement may be agreed upon between you and the insurance company for the doctor. If a settlement cannot be reached the case will proceed to trial.
Trial
When your lawyer has completed the initial investigation and determines you have a strong malpractice case, they will file the complaint. The complaint will be clear in its allegations and must be delivered to the defendant along with the summons.
The next phase involves discovery. This involves the exchange of medical records as well as depositions from witnesses. Your lawyer will make use of the evidence to prove that your doctor did not follow the standard of care. The goal is to prove that the error resulted from the negligence of the doctor that caused damage.
Aside from the witness statement Your medical malpractice lawyer will collaborate with two or three expert witnesses to support your claim. They will be provided with medical records and details regarding your case to prepare for their deposition and testimony. They can also assist in preparing your case for trial.
As part of the trial preparation your attorney will begin settlement negotiations with the defense. The process can take many years. In this time, you are recovering from your injuries and determining the magnitude of your damages. When you can, it’s beneficial for everyone to avoid litigation and settle out of court. Your lawyer will carefully weigh the merits of a settlement offer against your present and long-term recovery. If the settlement is fair, your lawyer will encourage you to accept it.
Damages
During the discovery phase, plaintiffs will need to prove that their losses are significant and that negligence on the part of the defendant has contributed to these damages. For instance, if a doctor failed to inform the patient that the procedure carried a 30 percent chance of losing a limb, and the procedure was carried out perfectly but the patient lost their arm in the process, the medical professional could be held accountable for malpractice.
In order to be able to file a valid legal action, the defendant must also prove that a competent lawyer could have been able to stop their financial loss or at least minimize its size. It is sometimes referred to the “but for test”. It is also important to show that the plaintiff has paid for expenses in pursuing a successful legal claim, which are higher than the amount demanded in compensation.
Our medical malpractice attorney lawyers are able to explain the different types of damages that may be suffered in a malpractice lawsuit including the past, present and future medical expenses as well as lost income, suffering and other non-economic losses. Generally, the more serious the injury, the higher the award. However, a successful verdict is sometimes overturned on appeal. Settlements that are not in court may be beneficial for a few clients. It could save money and time on litigation costs. It also helps avoid the risk of a jury choosing a case based on emotions instead of facts.