Malpractice Litigation: A Simple Definition

How to File a Medical Malpractice Lawsuit

Medical malpractice lawsuits are complex. There are certain guidelines to follow, such as a deadline within which a lawsuit can be filed.

In addition to showing negligence, the claimant must also prove that the doctor's actions resulted in injuries and losses. This will require medical and hospital records.

Complaint

When your attorney's inquiry has uncovered evidence that malpractice occurred, he or she will file a lawsuit in court along with a summons. The complaint will identify the defendants, and then state the allegations you have made against them.

Malpractice claims are based on the belief that a physician or nurse or any other healthcare professional owes a patient a minimum standard of care. This is defined as the amount of care and skill that a reasonable medical professional who has similar training would exercise in similar circumstances. Your legal team has to prove that your doctor did not meet this standard which resulted in injuries from which you sustained damages quantifiable.

A physician's standard of care is often an issue of opinion and is difficult to prove. It is essential to find an attorney who has access to experts in the medical field to testify on what a reasonable professional would have done.

Not only physicians can make mistakes, but also hospital personnel, like anesthesiologists and nurses. This is especially the case for emergency room personnel where mistakes are usually caused by a busy atmosphere and overworked personnel. Your lawyer could be able to secure an expert opinion from the emergency room personnel who can demonstrate the circumstances that led to the incident and how your doctor failed to fulfill this standard.

Discovery

During the discovery phase your lawyer will gather and examine evidence that may be used to support a malpractice claim. This includes medical records, witness statements, expert testimony and more. This information can also be requested by the legal team opposing the case. This is typically done through inquiries and requests for production of documents. However, certain materials may be classified as confidential or privy because of privacy laws like HIPAA and its Privacy Rule.

You must also prove that your injury was the result of a doctor's negligence. This is the most challenging aspect of a medical negligence case since it requires expert witness testimony that supports your claim.

Your lawyer will also depose witnesses who can prove the doctor was negligent. This could include nurses, assistants, radiologists, dentists and other personnel who were involved in your treatment. Your attorney will be skilled in taking effective and convincing depositions that force these witnesses to admit that the doctor was negligent.

The majority of lawsuits are settled before they go to trial. In medical malpractice cases, this is especially common since the cost of going to trial can be quite expensive. After the facts of your case have been established, a settlement can be negotiated between you and the insurance company for the doctor. If a settlement isn't reached, your case may proceed to trial.

Trial

After your attorney completes the initial investigation and decides you have a solid malpractice case, they will file the complaint. The complaint will be clear in its allegations and will be served to the defendant along with a summons.

Discovery is the next phase. This includes the exchange of medical records and depositions of witnesses. Your lawyer will use these documents to prove your doctor's breach of standard of care. The goal is to establish that the error was caused by the negligence of the doctor, and caused damages.

In addition to the witness statement, your medical malpractice attorney will work with a couple of expert witnesses to support your claim. They will be provided with medical records and all the details about your case to prepare for their testimony and deposition. They may also assist in preparing your case for trial.

Your lawyer will initiate negotiations with the defense as part of the preparation for trial. The process continues throughout the trial, and may last for many years. In this time, you are recovering from your injuries and determining the severity of your damages. If possible, it's in everyone's best interest to avoid litigation and settle out of court. Your attorney will carefully compare the merits of any settlement with your current and potential recovery. If the settlement offer is reasonable the attorney will convince you to accept it.

Damages

During the process of discovery the plaintiffs must prove that their losses were substantial and that the negligence of the defendant contributed to the damages. For instance, if the doctor failed to inform the patient of the 30% possibility that the procedure might result in the loss of a arm, and the operation was perfect but the patient lost an arm or limb, the doctor could be held responsible for negligence.

To be able to bring a valid malpractice lawsuit, the victim must also prove that a competent attorney would have been able to prevent their financial loss or at the very least, reduce the amount. This is sometimes called the "but for test". Additionally, it is important to show that the plaintiff has incurred expenses in pursuit of a successful legal claim that is greater than the amount demanded as compensation.

Our medical malpractice attorneys can explain the different types of damages granted in a malpractice case, including past, current and future medical expenses as also lost income, pain and discomfort, and other economic or non-economic losses. The more money you are awarded the more serious the injury. However, a verdict that is deemed to be a success can sometimes be overturned on appeal. Therefore, settling the case outside of court could be a good option for certain clients. It can save time and money on litigation fees, as well as avoid the potential risk of having a jury judge a case based on the basis of emotions instead of facts.