Ten Common Misconceptions About Malpractice Case That Aren t Always The Truth

How to File a Medical Malpractice Lawsuit

A medical malpractice lawsuit against a doctor or hospital requires proof that the defendant breached his or her obligation to patients. This evidence could include hospital and medical documents.

Our lawyers are adept at deposing witnesses in a professional manner. They could be doctors, other medical professionals in private practice, or staff members at a hospital or clinic.

Negligence

If a patient is seen by a doctor, hospital or health care professional they are entitled to certain standards of medical care. In some instances, these standards are not met, or even violated. This can cause devastating results.

A lawsuit can be filed against a medical professional when an injured patient dies due to the malpractice of the physician. To have a valid case, an injured patient must demonstrate four legal elements that include breach of duty, breach of duty, causation and damages.

Malpractice can be defined as an act committed by an individual doctor that is not in line with the accepted norms in the medical community and causes harm to patients. It is an aspect of tort law that deals with civil violations that are not contractual duties or criminal offenses.

Medical negligence differs from regular negligence because the victim must prove that the doctor knew or should have known that their actions would cause harm in order to claim malpractice, but normal negligence doesn't. For example an surgeon who accidentally cut a vein or nerve during surgery could be considered negligent, but not malpractice as the doctor did not intend to cause harm.

In a case of medical malpractice the defendant is under an obligation to treat the patient according to the standard of care that a reasonably competent healthcare professional with the same experience and training in similar circumstances would provide. The breach of this duty is a crucial element since it proves that the negligent act caused the injury.

Damages

In a malpractice lawsuit, damages are based on the losses you sustained as a result of the negligence of a doctor. This could include financial losses, including future medical costs, as well as non-economic damages like pain and discomfort.

To be able to claim damages, you must show that the doctor breached the duty of care, that the physician's deviation from that standard caused injury, and that the injury was measurable in terms of financial consequences. This is a complex legal analysis that usually requires expert witness testimony.

Some of these losses are evident for instance, if your doctor made a mistake that led to an illness or other medical issue, and you needed additional treatment due to the result. Some damages are more difficult to spot, such as when doctors misdiagnose your condition and you cannot get the right treatment.

If a medical professional's negligence causes your death then you can sue for wrongful death. You may be able to claim punitive damages in addition to the compensation you'd receive in a survival lawsuit.

In most states, there are limits on the amount you can recover in a malpractice case. These caps vary state-to-state and are usually applicable to both economic and non-economic damages. Some states have laws that limit how long you can delay before filing a lawsuit.

Time Limits

As with any lawsuit there are time limits which must be adhered to, or the case could be barred. Generally speaking, a medical malpractice lawsuit must be filed within two to six years after the medical malpractice that occurred. The time frame varies by state.

The time period can be complicated and it is important to speak with an attorney right away. The law firm will conduct an investigation to determine if malpractice has occurred and if it will be found to be valid in the court. This stage can take months or even weeks.

Medical malpractice cases are governed by different laws and the statute of limitation is often altered. For example in Pennsylvania the patient must file a claim within 2 years from the time they realized the malpractice or when a reasonable individual would have known that the harm existed. This is called the discovery rule.

In other states the statute of limitations starts at the time the malpractice occurred. This can be a problem if the medical error does not cause immediate symptoms. Imagine, for example, that a doctor has negligently left a foreign body inside the body of the patient following surgery. The patient may not discover the foreign object until at least three years after surgery. In that situation, the statute of limitations might have started to begin running from the date of the procedure instead of the moment of discovery of the error.

Expert Witnesses

Expert witnesses are often called upon to explain the facts in medical malpractice cases. An expert witness for the plaintiff will provide testimony regarding the doctor's duty of providing medical care to the patient as well as the standards of medical care in the area and in the specialty of that type of physician with similar qualifications and skills and the ways in which the defendant violated those standards. The expert will then describe how the departure directly contributed to the injury suffered by the patient.

The defendant will hire an expert to counter the plaintiff's expert and offer their professional opinion as to whether the doctor met the standards of care. It is common for experts to disagree with one however the factfinder decides who is the most reliable based on their expertise and experience.

It is recommended for the expert to continue working in the medical profession since they are more informed about current practice. Judges and jurors typically find practicing professionals more credible than experts whose sole source of income is the testifying in court.

It is also advisable to use an expert witness who is skilled in the area of the legal malpractice. A medical professional with expertise in treating breast cancer, for instance, could present a an argument that is convincing regarding the reason for an injury. A medical malpractice attorney in Ocala will know what experts to speak with.