The 10 Most Scariest Things About Medical Malpractice Attorneys

How to File a Medical Malpractice Lawsuit

Many medical malpractice lawsuits require significant time and resources from both physicians and attorneys. This investment includes attorney time as well as court fees, expert witness fees and other expenses.

An injury resulting from medical professional's negligence, incompetence, error or omission can result in medical malpractice claims. The injured party may be able to seek compensation damages, which include economic loss, such as the past and future medical bills, as well as noneconomic damages like pain and suffering.

Complaint

A medical malpractice case is complex and requires proof of credibility to be able to prevail. The injured patient (or their attorney if they've lost their claim) must prove each of the following legal elements of the claim:

The hospital or doctor had a responsibility to follow the standards of care in force. The defendant did not meet this obligation. The breach directly caused injury for the plaintiff. This element of a malpractice claim is called "causation." A breach of the standard of care does not cause an injury, but it has to be proven that the breach directly caused the injury and was the main reason for the injury.

To protect a patient's rights, and to ensure that a doctor does not continue to commit errors, it is required to file a report with the state medical board. A report is not a lawsuit but it can be a good first step in starting the malpractice claim. It is advisable to speak with an Syracuse malpractice lawyer prior to filing any report or document.

Summons

A summons or claim is filed in court and sent to the defendant doctor as part of the legal procedure. A plaintiff's lawyer appointed by the court will look over these documents. If it appears that there may be a malpractice case the lawyer is required to file an affidavit as well as a complaint with the court, describing the suspected mistake.

The next step in the legal process is obtaining evidence through pretrial discovery. This involves submitting requests for evidence such as hospital billing information or clinic notes, as well as taking the defendant's deposition where lawyers question the defendant on his or her knowledge of the case under the oath.

The plaintiff's attorney will use this information to demonstrate the elements of a medical malpractice case during trial. This includes the existence of a duty on the physician's part to provide medical care and treatment to patients; the physician's breach of this duty; a causal relationship between the breach and the patient's injuries or death and a substantial amount of damages resulting from the death or injury to justify a monetary award of compensation.

Discovery

During the discovery process both sides are allowed to ask for and receive evidence that is relevant to the case. This includes medical records that were taken prior to and after an incident of negligence, information regarding experts as well as copies of tax returns or other documents related to out-of-pocket expenses that the plaintiff claims to have incurred, and the names and contact details of any witnesses who are expected to testify during the trial.

The majority of states have a statute of limitations that gives injured people an amount of time after an injury or medical mistake to file a lawsuit. Those time limits are usually determined by state law, and they are subject to rules called the "discovery rule."

To prevail in a medical malpractice lawsuit, the injured patient must prove that the negligence of a doctor caused specific harm, like physical pain or loss of income. They must also prove causation -- that is, that the negligent treatment was directly responsible for their injuries or death.

Deposition

Depositions are sessions of question and answer which take place in the presence of a court reporter who records the questions as well with the answers. The deposition is an element of the process of discovery, which is about gathering information that can be used in a trial.

Attorneys can ask a series questions to witnesses, usually doctors. When a doctor is questioned and asked to answer questions truthfully under an oath. Usually the physician is asked questions by one attorney, and then cross-examined by a different attorney. This is a crucial phase of the case and requires the complete attention and focus of the physician.

A deposition is a way for attorneys to get a complete background on the doctor's qualifications in relation to his or her education, training and experience. This information is critical to establish that the doctor violated the standards of care in your situation and that the breach caused you harm. Physicians who have been educated in this area are likely to be able to prove they have knowledge of specific procedures and techniques that could be relevant to a specific medical malpractice case.

Trial

A lawsuit in a civil court is officially initiated when your lawyer lodges a complaint and a summons with the appropriate court. The process begins with a legal requirement of disclosure known as discovery where you and your physician's team work together to gather evidence to prove your case. This evidence usually comprises medical malpractice law firm records and testimony of an expert witness.

The objective of proving that you have committed a malpractice is to prove that your physician's actions did not meet the standard of care. Your lawyer must convince a jury that it is more likely than not your injuries would not have occurred if your physician acted according to the standard of care. The lawyers for your doctor will present arguments that are contrary to the evidence that your attorney has presented.

Despite the myth that doctors are the target of unsubstantiated claims of malpractice, decades of empirical evidence demonstrate that juries make reasonable assessment of the severity of the damage and negligence and that juries tend to be skeptical of large amounts of money awarded. The vast majority of malpractice cases are settled before trial.