Guide To Malpractice Litigation: The Intermediate Guide To Malpractice Litigation
How to File a Medical Malpractice Lawsuit
Medical malpractice lawsuits are complex. There are specific guidelines to follow, such as a deadline within which the lawsuit may be filed.
The claimant must also demonstrate that the doctor's actions led to injuries and losses. This will require hospital and medical records.
Complaint
After your attorney's investigation has uncovered evidence that malpractice occurred, the attorney will file a formal complaint in court along with a summons. The complaint will name the defendants and describe the allegations you have made against them.
Malpractice claims are based upon the belief that nurses, doctors, or other healthcare providers owe a patient the highest standard of care. This standard is defined as the degree of competence and care that a reasonably prudent medical professional who has similar training could exercise in similar situations. Your legal team must prove that your doctor violated this standard and resulted in you suffering quantifiable damages.
It isn't easy to prove that a physician's standards are comparable to another doctor's. 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 just doctors who commit medical mistakes; hospital staff members, such as nurses and anesthesiologists, also are susceptible to making mistakes. This is especially true of emergency room personnel, where errors are usually due to the crazed atmosphere and overworked staff. Your lawyer may be able obtain evidence from experts in the emergency room who can help demonstrate what should have been done and how the actions of your doctor were not up to the standard.
Discovery
During the discovery process the attorney will collect and malpractice look over evidence that could be used to prove a malpractice claim. This includes medical documents, witness statements, expert testimony, and more. The information may also be requested by the opposing legal team. This is typically done through inquiries and requests for production of documents. Certain materials may be privileged and confidential due to privacy laws, for instance HIPAA's Privacy Rule.
You must also prove that your injury was the result of a negligence of the doctor. This is the most difficult aspect of a medical negligence claim since it requires expert evidence to support your claim.
Your lawyer will also interview witnesses who can prove that the doctor's actions were negligent. This can include radiologists, dentists, nurses, assistants and others who were involved in the care of your health. Your attorney will be skilled at taking strong and effective depositions that force these witnesses to admit that the doctor was negligent.
Most lawsuits are resolved, or settled, before they reach the trial stage. This is especially common in medical malpractice law firms cases since the costs associated with a trial can be very expensive. Once the facts are established you can negotiate a settlement with the insurance company of the doctor. If a settlement is not reached, your case could proceed to trial.
Trial
Your attorney will file a complaint after completing the initial investigation. If they decide that you have a compelling case of malpractice, they will file the complaint. The complaint will clearly state the allegations and be sent to the defendant with the summons.
Discovery is the next stage. The next phase involves discovery. This includes the exchange and depositions of witnesses. Your lawyer will make use of these documents to prove your doctor's violation of the standard of care. The aim is to prove that the error resulted from the negligence of the doctor that caused damages.
Your medical malpractice lawyer will also collaborate with one or more expert witnesses in support of your claim. These experts will receive medical records and detailed information about your case in preparation for their depositions and testimony. They can also assist you in preparing your case for trial.
Your attorney will start settlement discussions with the defense as part of the preparation for trial. This process can go on for many years. During this period, you will be recovering from your injuries and determining the amount and value of your injuries. It is in everyone's best interests to settle out of the courtroom and avoid litigation whenever feasible. Your attorney will carefully assess the merits of any settlement offer with your current and potential recovery. If the settlement offer seems reasonable then your lawyer will advise you to accept it.
Damages
During the discovery phase, plaintiffs have to prove that their losses are significant and that negligence on the part of the defendant has contributed to these damages. For example, if the doctor malpractice did not inform the patient that the surgery carried a 30 percent chance of losing a limb. Moreover, if the surgery was performed perfectly but the patient lost their arm and the medical professional could be held accountable for negligence.
To have a viable malpractice suit, the plaintiff must also show that a competent attorney would have been able to avoid financial loss or at the very least, reduce its size. This is sometimes referred to as the "but for" test. It is also necessary to prove that the plaintiff has paid for expenses to pursue a legal claim, which is higher than the amount demanded in compensation.
Our medical malpractice lawyers are able to explain the different types of damages that may be granted in a malpractice case which include past, present and future medical expenses, as along with lost income and pain and discomfort and other economic or non-economic loss. Generally, the more serious the injury, the higher the award. However, a decision that is successful could be reversed upon appeal. Settlements outside of court may be advantageous for some clients. It can save time and money on court costs, as well as avoiding the possibility of having a jury decide an issue on the basis of emotion rather than fact.