20 Resources To Help You Become More Effective At Malpractice Litigation
How to File a Medical Malpractice Lawsuit
Medical malpractice lawsuits are a bit more complicated. There are specific guidelines to be followed including a specified time period in which the suit can be filed.
In addition to proving negligence, the claimant must show that the actions of the doctor resulted in injuries and losses. This will require hospital and medical documents.
Complaint
Your lawyer will prepare a court-appointed complaint and summons if he or she has found evidence of malpractice. The complaint names the defendants in your case, and clearly outlines the allegations you are making against them.
The basis for malpractice claims is the belief that a physician or nurse or other healthcare professional owes a patient a certain standard of care. This standard is defined as the level of expertise and prudence that a reasonably prudent medical professional with the same training could exercise in similar situations. Your legal team has to prove that your doctor breached this standard, resulting in injuries from which you suffered quantifiable damages.
A doctor's standard of care is often a matter of opinion, and is difficult to prove. It is crucial to employ an attorney who has access to experts in the medical field to testify about what a reasonable doctor would have done.
It's not only doctors who make mistakes in their medical practice; hospital staff members, like nurses and anesthesiologists can commit malpractice. This is particularly true for emergency room staff, where errors are usually due to a crowded environment and overworked staff. Your lawyer could be able to secure an expert witness from the emergency room staff who can show what could have been done differently and why your doctor was unable to meet the standards.
Discovery
During the discovery phase, your attorney will gather and look over evidence that might support a malpractice claim. This could include medical records, witness statements as and expert testimony. This information can be requested by the opposing legal team. This is typically done via interrogatories and requests for production of documents. However, certain materials could be classified as confidential or privy because of privacy laws, such as HIPAA and its Privacy Rule.
You must also prove that your injury is the result of the negligence of your doctor. This is the most difficult part of a case involving medical negligence, as it requires expert testimony to back your claim.
Your lawyer will also interview any witnesses that can support the doctor's negligence. This could include radiologists dentists, nurses, assistants as well as other individuals who were involved in the treatment of your health. Your lawyer will be adept in preparing strong and persuasive depositions to convince these witnesses to admit that the doctor was negligent.
The majority of lawsuits are resolved or settled before they reach the trial stage. This is especially common for medical malpractice cases, since the costs involved in the trial process can be expensive. Once the facts are established, you can negotiate an agreement with the insurer of the doctor. If no settlement can be reached, your case may go to trial.
Trial
Your attorney will file a complaint following having completed the initial investigation. If they determine that you have a strong case for malpractice, then they will file the complaint. The complaint will clearly state the allegations and will be given to the defendant with the summons.
Discovery is the next phase. This involves the exchange of medical records as well as depositions from witnesses. Your lawyer will make use of these statements to establish your doctor's breach of the standard of care. The objective is to prove that the error was caused by the negligence of the doctor and caused damages.
Your medical malpractice attorney will also collaborate with one or more expert witnesses in support of your claim. They will be provided with medical records as well as detailed information about your case to prepare for their depositions and testimony. They may also assist in preparing your case for trial.
Your attorney will begin talks with the defense during the preparation for trial. This process continues throughout the course of the trial and may last for years. During this time, you'll be recovering from your injuries while determining the magnitude and value of your injuries. When possible, it's in everyone's best interest to avoid litigation and settle out of court. Your attorney will carefully assess the merits of any settlement offer against your current and future recovery. If the settlement seems reasonable, your lawyer will encourage 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 those damages. For instance, if the doctor did not inform the patient that a surgery 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 held liable for malpractice.
To have a viable legal action, the defendant must prove that a competent attorney could have been able prevent their financial loss or at the very least, reduce the size. It is sometimes referred to the "but for test". It is also required to show that the plaintiff incurred costs in pursuit a successful legal claim that is greater than the amount they seek in compensation.
Our medical malpractice lawyers are able to explain the various forms of damages that can be caused by a malpractice lawsuit including past, present and foreseeable medical expenses loss of income, suffering as well as other non-economic losses. Generally, the more serious the injury, the greater the award. However, a successful verdict could be reversed when appealed. Settlements outside of court can be advantageous for some clients. It will save time and money on court costs, as well as avoiding the possibility of having a jury judge cases on the basis of emotion instead of facts.