Malpractice Litigation: A Simple Definition

How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits can be a bit complicated. There are specific rules that must be followed including a certain time period within which the suit could be filed.

In addition to proving negligence, the claimant must also prove that the actions of the doctor resulted in losses and injuries. This will require hospital and medical documents.

Complaint

Your attorney will file a court complaint and summons once he or she has discovered evidence of malpractice. The complaint will identify the defendants and state the allegations you make against them.

Malpractice claims are based on the belief that a physician or nurse or other healthcare provider owes a patient a standard of care. This standard is defined as the level of skill and caution that a reasonably prudent medical professional trained similarly could exercise in similar situations. Your legal team must demonstrate that your doctor did not adhere to this standard and caused you to suffer quantifiable damage.

It can be challenging to prove that a doctor's standard is the same as another doctor's. This is why it is crucial to choose a law firm that has access to expert witnesses who can testify on the medical field and what a reasonable professional in your situation would have done.

It's not just physicians who make mistakes in their medical practice; hospital staff members, such as nurses and anesthesiologists, also can be liable for malpractice. This is particularly true for emergency room personnel, where mistakes are often made due to a crowded environment and overworked staff. Your attorney may be able obtain evidence from experts in the emergency room who can provide evidence of the proper procedure and how your doctor's actions were not up to the standard.

Discovery

During the discovery phase during the discovery phase, your lawyer will gather and analyze evidence that could help in proving a malpractice case. This includes medical records, witness statements, as in addition to expert testimony. This information can be requested by the legal team opposing the case. This is accomplished through interrogatories or requests for documents. Certain materials may be privileged and secret due to privacy laws, such as HIPAA's Privacy Rule.

You must also prove your injury is due to the negligence of your doctor. This is the most difficult aspect of a medical negligence case since it requires expert witness testimony that proves your claim.

Your lawyer will also question any witnesses that can prove that the doctor's actions were negligent. This includes radiologists, dentists as well as nurses, assistants and other people who were involved in the treatment of your health. Your attorney will know how to take powerful and effective depositions to make these witnesses admit that the doctor was negligent.

Most lawsuits are settled before they reach trial. In cases involving medical malpractice it is a common practice since the cost of going to trial can be quite expensive. Once the facts of your case are established, a settlement can be discussed between you and your insurance company for the doctor. If a settlement isn't attainable 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. This will clearly state the allegations and be sent to the defendant with the summons.

The next phase involves discovery. This involves the exchange of medical records and depositions of witnesses. Your lawyer will use these statements to prove that your doctor violated the standard of care. The goal is to establish that the error was caused by the negligence of your doctor, and resulted in damages.

Your medical malpractice attorney will also work with one or more expert witnesses to support your claim. These experts will be provided medical records and all the details regarding your case in order to prepare for their deposition and testimony. They can also assist you in preparing your case for trial.

Your attorney will begin discussions on settlement with the defense team as part of the preparation for trial. This process is ongoing throughout the course of the trial and can last for years. During this time, you are recovering from your injuries and determining the magnitude of your injuries. It's in everyone's interest to settle your case outside of court and avoid litigation whenever it is possible. Your attorney will carefully weigh the advantages of a settlement offer against your current and future recovery. If the settlement is fair your lawyer will advise you to accept it.

Damages

During the process of discovery Plaintiffs must demonstrate that their losses were significant and that the negligence of the defendant was a factor in the damages. For example, if the doctor did not inform the patient that the procedure was a 30 percent risk of losing a limb and the surgery was performed perfectly but the patient lost their arm and the medical professional could be liable for malpractice.

In order to be able to file a valid malpractice lawsuit, the person who is suing must also show that a competent lawyer could have been able prevent their financial loss or at least reduce the amount. This is sometimes referred to as the "but for" test. Additionally, it is required to prove that the plaintiff was liable for costs in the pursuit of a legal claim that is over the amount sought as compensation.

Our medical malpractice attorneys can provide an explanation of the different types of damages that may be awarded in a case of malpractice that include past, current and future medical expenses, as well as lost income as well as pain and discomfort and other economic or non-economic loss. The higher the award the more serious the injury. A decision that is found to be a success could be challenged by an appeal. Settlements outside of court can be beneficial for a few clients. It will reduce time and cost in costs for litigation, as well as avoid the potential risk of having a jury judge a case based on the basis of emotions rather than fact.