15 Terms That Everyone Who Works In Malpractice Litigation Industry Should Know
How to File a Medical Malpractice Lawsuit
Medical malpractice lawsuits can be very complicated. There are specific guidelines to be followed including a certain time period within which the suit could be filed.
The claimant must also demonstrate that the doctor's actions resulted in injuries and losses. This will require medical and hospital records.
Complaint
If your attorney's probe has revealed evidence that a malpractice occurred, he or she will file a complaint in court along with a summons. The complaint identifies the defendants in your case, and clearly outlines the allegations you're making against them.
The basis for malpractice claims is the idea that a doctor or nurse or any other healthcare provider owes a patient a minimum standard of care. This standard is the level of competence and care a reasonably prudent doctor with the same training would employ in similar circumstances. Your legal team must show that your doctor did not adhere to this standard and caused you to suffer quantifiable injury.
A doctor's standard of care is usually an issue of opinion and can be difficult to prove. This is why it is important to work with a legal firm with access to experts who can testify about the medical field and what a reasonable professional in the same situation as your doctor would have done.
Not only doctors can make mistakes, but also hospital personnel, like anesthesiologists and nurses. This is especially applicable to emergency room staff where mistakes are usually due to a crowded environment and overworked staff. Your lawyer may be in a position to obtain an expert witness from the emergency room personnel who can provide evidence of what could have been done differently and the reason why your doctor failed to meet the standards.
Discovery
During the discovery phase your lawyer will gather and examine evidence that may support a malpractice lawyers claim. This could include medical records, witness statements, as in addition to expert testimony. This information can also be requested by the opposing legal team. This is usually done through interrogatories and requests for the production of documents. Certain materials could be protected and confidential due to privacy laws, for instance HIPAA's Privacy Rule.
You must also prove your injury is due to the negligence of your doctor. This is the most difficult part of a medical negligence case because it requires an expert evidence to support your claim.
Your lawyer will also call witnesses who can prove the negligence of the doctor. This can include assistants, nurses, radiologists, dentists and other personnel who were involved in your treatment. Your attorney will know how to conduct powerful and convincing depositions so that these witnesses acknowledge that the doctor's negligence.
The majority of lawsuits are resolved or settled before they reach the trial stage. For medical malpractice cases it is a common practice because the cost of going to trial can be quite expensive. Once the facts of your case have been established, a settlement could be agreed upon between you and the insurer of your doctor. If a settlement is not reached, the case may go to trial.
Trial
Your lawyer will file a formal complaint after completing the initial investigation. If they determine that you have a strong case of malpractice, they will file the complaint. The complaint will be clear in its allegations and will be served to the defendant with a summons.
The next step is discovery. This includes the exchange of medical records and depositions from witnesses. Your lawyer will make use of the statements to prove that your doctor acted in violation of the standard of care. The aim is to demonstrate that the error was the result of the negligence of the doctor and caused damages.
Apart from the witness's statement Your medical malpractice lawyer will work with a couple of expert witnesses to support your claim. These experts will receive medical records and specific information regarding your case in order to prepare for their deposition and testify. They may also help prepare your case for trial.
Your attorney will start settlement discussions with the defense team as part of the trial preparation. This process can last for several years. During this time, you are recovering from your injuries and determining the extent of your losses. It's in everyone's interest to settle your case outside of court whenever it is possible. Your lawyer will carefully evaluate the merits of any settlement offer with your current and future recoveries. If the settlement offer is reasonable the attorney will convince you to accept it.
Damages
During the discovery phase, plaintiffs will be required to prove that their losses are significant and that the negligence of the defendant has contributed to the damages. For example, if the doctor did not inform the patient of the 30 percent likelihood that the procedure will result in the loss of arm, and the operation was flawless, but the patient lost an arm or limb, the doctor could be held responsible for negligence.
In order to be able to file a valid legal action, the defendant must also show that a competent lawyer could have been able to stop their financial loss or at least minimize the size. This is sometimes called the "but for test". It is also important to show that the plaintiff has incurred expenses in pursuit a successful legal claim, which is more than the amount sought in compensation.
Our medical malpractice attorneys can explain the various types of damages that may be awarded in a case of malpractice that include past, current and future medical expenses, as also loss of income and pain and discomfort and other non-economic losses. The higher the award the more serious the damage. A decision that is found to be a success could be challenged by an appeal. So, settling outside of court could be a good option for certain clients. It will save time and money on court costs, as well as avoiding the possibility of having a jury decide a case on the basis of emotion instead of facts.