The 10 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 can include attorney time, court fees, expert witness fees and other costs.

A serious injury that is the result of a healthcare professional's negligence, misconduct, error or omission can lead to medical malpractice claims. Victims of injury can seek compensation for economic losses, including future or past medical expenses as well as non-monetary injuries, such as discomfort and pain.

Complaint

A medical malpractice case has many moving parts and requires reliable evidence to win. The injured party (or their attorney if they've passed away) must be able to prove each of the following legal aspects of the claim:

The defendant breached that obligation. The defendant did not meet this obligation. That the breach directly caused injury to the plaintiff. This is referred to as "cause". A breach of a duty of care does not in itself cause injury. It must be proven that it caused the injury directly and was the primary cause for the injury.

It is sometimes required to file a complaint with a state medical board in order to safeguard the rights of the patient and ensure that the doctor does not commit additional malpractice. A report is not a lawsuit however, it is an excellent first step in beginning the process of bringing a malpractice claim. It is generally recommended to speak with an Syracuse malpractice lawyer prior to filing a report or any other document.

Summons

As part of the legal process the summons or claim form is filed with the court and then handed to the defendant physician. A plaintiff's lawyer appointed by the court will go through the documents. If it appears there may be a malpractice case the lawyer is required to file an affidavit, along with a complaint to the court, detailing the alleged error.

The next step is to obtain evidence by pretrial disclosure. This involves submitting requests for documentation such as hospital bills and clinic notes, as well as taking the deposition of the defendant physician. Attorneys will then inquire with the defendant under oath as to his or her knowledge regarding the case.

The lawyer for the plaintiff will utilize this information to establish the elements of a claim for medical malpractice in court. These include the existence of an obligation on the doctor's part to provide care and treatment to patients; the physician's infraction of this duty causality between the breach and the patient's injuries or death; and a sufficient amount of damages resulting from the death or injury to justify a monetary award of compensation.

Discovery

During the discovery phase, both parties are allowed to request any evidence relevant to their case. This includes medical malpractice attorney records before and following the suspected malpractice, information on experts and tax returns or other documentation that pertains to out-of-pocket expenses the plaintiff claims were incurred, along with the names and contact details for any witnesses who be present at trial.

Most states have a statute of limitation that gives injured people the time period of a certain amount of years after a medical mishap to bring a lawsuit. The time limit is set by the laws of the state and are subject to a law known as the "discovery rules."

To win a medical malpractice lawsuit, an injured patient must demonstrate that the negligence of the doctor caused specific harm, such as physical pain, or loss of income. They must also prove causation -- that is, that the negligent treatment was directly responsible for their injury or death.

Deposition

Depositions are question-and-answer sessions that are conducted in front of a court reporter who records both the questions as well as the responses. The deposition is part of the discovery procedure, which involves gathering information that can be used in the trial.

Depositions allow attorneys to ask witnesses, often doctors for a series of questions. When a doctor is questioned they must answer all questions truthfully under the oath. Usually the physician is asked questions by one attorney and then cross-examined by another attorney. This is an essential stage of the process and requires the full concentration and attention of the physician.

A deposition allows attorneys to gain a thorough understanding of the doctor's background, including his or the training, education and experience. This information is essential to establish that the doctor violated the standard of care in your particular case and that the breach directly caused you harm. Physicians who have been trained in this area often affirm that they have years of knowledge of certain techniques and procedures that may be relevant to a particular medical-malpractice case.

Trial

Your lawyer will submit a complaint to the court and will issue a summons. This starts the process of legal disclosure known as discovery. You and your doctor's staff will work together to gather evidence to support your case. This typically includes medical records and testimony from an expert witness.

To prove malpractice it is essential to establish that your doctor's actions were not in line with the standard of care. Your lawyer must convince jurors that it is more likely than not your injuries would not have occurred if your physician acted according to the standard of care. Your doctor's lawyers will argue arguments that do not agree with the evidence that your attorney has presented.

Despite the common belief that doctors are the target of unsubstantiated claims of malpractice years of evidence show that jury verdicts are based on reasonable estimates of negligence and damages and that juries tend to be skeptical of award amounts that are exaggerated. The vast majority of malpractice cases are settled before trial.