How to File a Medical Malpractice Lawsuit

A medical malpractice lawsuit against a doctor or hospital must prove that the defendant breached his or her obligation to patients. This evidence could include hospital and medical records.

Our attorneys are experienced at deposing witnesses in a professional manner. They may be doctors, other medical professionals who are in private practice or malpractice lawsuit work at a hospital or clinic.

Negligence

Patients are entitled to be treated with respect to certain standards when they visit a hospital, doctor or health professional. Unfortunately, in some instances these standards are not being met or even violated. The consequences of this breach could be devastating.

If someone is injured or suffers death as a result of a doctor's negligence, they can file a lawsuit against the medical professional. To be able to make a legitimate claim, the injured patient must prove that four legal elements exist: duty, breach of duty, causation, and damages.

Malpractice is defined as an act or omission by the physician that goes against the accepted norms of medicine within the medical profession, and can cause injury to the patient. It is a section of tort law, which is concerned with civil wrongs not criminal offenses or contractual obligations.

Medical negligence differs from regular negligence in that the person who is injured must show that the doctor was aware or ought to have known that their actions could cause harm in order to claim malpractice, but normal negligence is not required. For example a surgeon who accidentally cuts a vein or nerve during surgery would be considered negligent, but not malpractice as the doctor didn't intend to cause harm.

In a medical malpractice case the defendant is under a legal obligation to treat the patient according to the standard of care a reasonably prudent healthcare professional with similar knowledge and experience in similar circumstances could provide. The breach of duty is significant because it shows that the negligence alleged caused the injury.

Damages

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

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 norm caused injury, and this injury had quantifiable monetary consequences. This is a complicated legal analysis that usually requires expert witness testimony.

Some of these losses are evident for instance, if a doctor made a mistake that led to an infection or medical condition that required additional treatment because of it. Other damages are less readily apparent, such as when your doctor is unable to diagnose you correctly, and you are not able to receive the appropriate treatment.

You can sue for wrongful death in the event that your doctor's negligence results in your death. You can claim punitive damages in addition to the money you would receive in a survival suit.

In a majority of states, there are restrictions on what you can claim in a malpractice case. These caps vary by state, and often apply to both economic and non-economic damages. Certain states have laws that limit how long you can wait before filing a lawsuit.

Time Limits

As with all lawsuits there are deadlines that must be followed or the case could be barred. In general, a malpractice lawsuit must be filed within two to six years after the medical malpractice arising. The timeframe for filing a malpractice lawsuit is different for each state.

It is important to talk with an attorney as soon as you can. The law firm will conduct an investigation to determine whether a mistake has occurred and if it will be found to be valid in the court. This can take up to a few weeks or even months.

Medical malpractice cases are governed by different laws than other types of cases, and often the statute of limitations is altered. For example, in Pennsylvania the patient has to file a claim within two years of the date they realized the malpractice or when a reasonable person could have realized that the injury existed. This is referred to as the discovery rule.

In other states the statute of limitations starts at the time the malpractice happened. This is a problem when the malpractice does not immediately trigger symptoms. As an example, suppose doctors mistakenly leave an object foreign to the body following surgery. The patient might not be aware of the foreign object until at least three years after surgery. In this situation the statute of limitations could have started in the year following the date of the surgery, not the moment of discovery.

Expert Witnesses

Expert witnesses are frequently called upon to clarify the facts in medical malpractice cases. An expert witness for the plaintiff will testify on doctors' obligations to the patient, the medical requirements for doctors who have similar qualifications in the area as well as the specific ways in which the defendant departed from the standard. The expert will then explain how the departure directly caused the patient's injury.

The defendant will employ a professional to counter the plaintiff's expert, malpractice lawsuit and then provide their professional opinion regarding whether the doctor's treatment was consistent with guidelines of care. It is not uncommon for experts to disagree with one and yet the fact finder determines who is the most trustworthy on their knowledge and experience.

It is best that the expert continue to working in the medical field, as they will have a more knowledge of the current practice. Jurors and judges tend to find practicing professionals more credible than those who rely exclusively on the testimony of a court.

It is also recommended to have an expert with expertise in the area of malpractice. For instance, a medical expert who is knowledgeable about treating breast cancer can make an even more convincing case for the cause of a plaintiff's injury. A medical malpractice lawyer in Ocala knows which experts to speak with.