Matilda Saxon asked 3 months ago
How to File a Medical Malpractice Lawsuit
Medical malpractice suits are complicated. There are certain guidelines to be followed including a specified time period in which the suit can be filed.
In addition to the need to prove negligence, the plaintiff must also prove that the doctor’s actions resulted in losses and injuries. This will require medical and hospital records.
Complaint
When your attorney’s inquiry has found evidence that fraud has occurred, he or she will file a lawsuit in court and issue summons. The complaint will identify the defendants in your case and outlines the allegations you are making against them.
Malpractice claims are based on the idea that doctors, nurses or other healthcare providers are obligated to a patient the same level of care. This is defined as the amount of competence and care that a reasonably prudent medical professional trained similarly would exhibit in similar situations. Your legal team needs to prove that your doctor did not meet this standard which resulted in injuries from which you suffered quantifiable damages.
The standard of care for a doctor is usually an issue of opinion, and it is difficult to prove. This is why it is crucial to choose a law firm that has access to experts who can give testimony on the medical field and what an experienced professional in your situation would have done.
It’s not just physicians who make mistakes in their medical practice; hospital personnel, including nurses and anesthesiologists can commit malpractice. This is especially applicable to emergency room staff where mistakes are caused by a busy environment and overworked employees. Your lawyer may be able to obtain an expert opinion from the emergency room staff who can demonstrate the circumstances that led to the incident and how your doctor failed to meet the standards.
Discovery
In the discovery phase your lawyer will collect and examine evidence that could support a malpractice case. This includes medical records and witness statements as and expert testimony. These records can also be requested by the opposing legal team. This is done by interrogatories or requests for documents. Certain materials could be protected and confidential due to privacy laws, like HIPAA’s Privacy Rule.
You must also prove your injury is due to negligence by the doctor. This is the most challenging part of a malpractice case because it requires an expert witness testimony that proves your claim.
Your lawyer will also call any witnesses that can prove the doctor’s negligence. This could include radiologists dentists nurses, assistants, nurses and others who were involved in the care of your health. Your lawyer is skilled in taking effective and convincing depositions that force these witnesses to admit that the doctor’s negligence was not their fault.
The majority of lawsuits are settled prior to trial. In medical malpractice cases it is a common practice as the costs 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 cannot be reached, your case may be heard in court.
Trial
After your attorney has completed the initial investigation and concludes that you have a strong malpractice case, they will file the complaint. The complaint will be clear in its allegations and be sent to the defendant along with the summons.
The next step is discovery. This involves the exchange of medical records and depositions from witnesses. Your lawyer will use these statements to establish your doctor’s violation of the standard of care. The objective is to prove that the error resulted of negligence by the doctor and caused damage.
Apart from the witness’s statement, your medical malpractice attorney will work with one or two expert witnesses to back up your claim. They will be provided with medical records and detailed information regarding your case to prepare for their depositions and testimonies. They may also assist in preparing your case for trial.
Your attorney will begin negotiations with the defense during the trial preparation. This process is ongoing throughout the trial, and may last for several years. During this time, you are recovering from your injuries and determining the severity of your losses. If you can, it is beneficial for everyone to avoid litigation and settle out of court. Your attorney will carefully weigh the advantages of a settlement offer against your current and future recovery. If the settlement is reasonable your lawyer will advise you to accept it.
Damages
During the process of discovery the plaintiffs must prove that their losses were significant and that the negligence of the defendant contributed to those damages. If, for instance, the doctor did not inform the patient of the 30 percent likelihood that the procedure will result in the loss of leg, and the procedure was successful, but the patient lost an arm or limb, the doctor may be held accountable for negligence.
To be able to bring a valid malpractice lawsuit, the person who is suing must also show that a competent attorney could have helped reduce their financial loss, or at least minimize the size. It is sometimes referred to the “but for test”. It is also necessary to prove that the plaintiff has incurred costs in the pursuit of a successful legal claim, which is higher than the amount demanded in compensation.
Our medical malpractice lawyers are able to provide a detailed explanation of the various types of damages that could be sustained in a malpractice lawsuit including future, present and past medical expenses as well as lost income, pain and suffering and other non-economic losses. In general, the more severe the injury, the more the amount of compensation. A verdict that is successful could be overturned by an appeal. So, settling out of court could be an advantageous option for certain clients. It can save money and time on court costs. It also eliminates the possibility of a jury choosing a case based on emotions instead of facts.