How to File a Medical Malpractice Lawsuit

Bringing a medical malpractice suit against a hospital or doctor requires evidence that the defendant has violated his or her obligation to patients. This could include medical and hospital records.

Our attorneys have a wealth of experience in taking effective depositions. These may be doctors or other medical professionals working in private practice, malpractice or staff members at a clinic or hospital.

Negligence

When a patient goes to a doctor or hospital professional and receives medical care, they are entitled certain standards of medical treatment. Unfortunately, in some instances these standards are not adhered to or even breached. The results of this breach could be devastating.

A lawsuit may be filed against a medical professional when patients are injured or dies due to the malpractice of the physician. To have a valid case the patient who has been injured must establish four legal elements that include breach of duty, breach of duty, causation and damages.

Malpractice is described as an act performed by an individual doctor that is not in line with the norms of the medical profession and results in harm to a patient. It is a section of tort law, which is concerned with civil wrongs, not criminal offenses or contractual duties.

Medical negligence differs from normal negligence in that the person who is injured must show that the doctor knew or should have known that their actions could cause harm in order to be able to claim malpractice, however normal negligence does not. For example, a surgeon who accidentally nicks a nerve or vein during surgery is in the wrong of negligence, but not malpractice because the doctor did not intend to cause harm.

In a lawsuit for medical malpractice the defendant has a duty to treat the patient in accordance with the standard of care a reasonably competent healthcare professional with comparable expertise and training in similar circumstances would offer. The violation of this duty is a critical element because it demonstrates that the alleged negligence caused the injury.

Damages

The damages in a malpractice case are based on the losses you suffered due to the negligence of a doctor. This could include financial losses, such as future medical expenses, as well as non-economic damages, such as discomfort and pain.

In order to recover damages, you must prove that the doctor did not fulfill the duty of care, that the physician's deviation from the standard caused injury, and that this injury had quantifiable monetary consequences. This is a complex legal process that usually requires expert witness testimony.

Some of these losses are evident like when your doctor made a mistake that led to an illness or other medical issue, and you needed additional treatment due to the result. Some damages are more difficult to identify like when the doctor is unable to diagnose your condition and you are unable to receive the proper treatment.

If a doctor's error leads to your death then you can sue for wrongful death. You may be able to claim punitive damages in addition to the compensation you'd get in a lawsuit for survival.

In many states, there are limitations on the amount you can recover in a malpractice case. These caps vary state-to-state, and often apply to both economic and non-economic damages. Some states also have rules that restrict the length of time you have to wait to bring a lawsuit.

Time Limits

Like any lawsuit, there are specific time limits to be adhered to or the case may be dismissed. Generally speaking, a malpractice lawsuit must be filed within two to six years from the medical malpractice arising. The timeframe for filing a lawsuit is different for each state.

The time period can be complicated and it is important to consult an attorney right away. The law firm will conduct an investigation to determine if any malpractice has occurred and if it will be able to stand in the court. This process can take months or even weeks.

Medical malpractice cases are subject to different laws, and the statute of limitations is often altered. For example in Pennsylvania patients must file a claim within two years from the day they were aware of the malpractice, or the date a reasonable person would have known that the harm existed. This is referred to as the discovery rule.

In some states the statutes of limitations begin to expire on the date that the medical error occurred. This could be a problem when the malpractice is not immediately causing symptoms. Consider, for instance, that a doctor mistakenly left a foreign body inside the body of the patient following surgery. The patient might not be aware of the foreign object until three or more years after the surgery. In this scenario the statute of limitations could have begun running from the date of surgery, not the discovery of error.

Expert Witnesses

Expert witnesses are often called upon to explain the facts in medical malpractice cases. An expert witness for the plaintiff will testify on the duty of the doctor to the patient, medical standards for physicians with similar qualifications in the field and specialization, and the ways that the defendant's actions were contrary to those standards. The expert will describe the way in which the defendant's actions directly impacted the victim's injury.

The defendant will contract an expert to challenge the plaintiff's expert and give their professional opinion on whether the doctor's treatment was consistent with standards of care. The experts could disagree, but the fact-finder decides which expert is most credible.

It is preferential that the expert continue to be working in the medical field since they'll have a better knowledge of current practices. Judges and jurors often find practicing professionals more credible than experts whose only source of income is a testimony in court.

It is also advisable to work with an expert who has specialized in the area of malpractice. For instance an expert in medical practice who is experienced in treating breast cancer can provide a more convincing argument about the reason for the plaintiff's injury. A seasoned Ocala medical malpractice attorney will know which expert witnesses to call for your case.