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How to File a Medical Malpractice Lawsuit

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

Our lawyers have a wealth of experience in taking effective depositions. They could be doctors, other medical professionals who are working in private practice or are employed at a clinic or hospital.

Negligence

If a patient is seen by a doctor, hospital or health care professional they are entitled to certain standards of medical care. Unfortunately they aren't always adhered to or even observed. The consequences of this breach could be devastating.

If someone is injured or suffers death as a result of a physician's negligence, they could sue the medical professional. To be able to file a valid lawsuit the injured person must prove four legal elements including breach of duty and damages and causation.

Malpractice is described as an act performed by an individual doctor that is not in line with the accepted norms of the medical profession and results in harm to patients. It is an aspect of tort law that addresses civil violations that are not legally binding or criminal in nature.

Medical negligence differs from regular negligence because the victim must prove that the doctor knew or should have known that their actions would cause harm in order to claim malpractice, but normal negligence doesn't. A surgeon who accidentally cuts or nicks the nerve or vein during surgery is guilty of negligence, but not malpractice. This is because the doctor didn't intend to cause harm to anyone.

In a lawsuit for medical malpractice the defendant is bound by a legal obligation to treat the patient according to the standards of care that a reasonably competent healthcare professional with the same experience and training in similar circumstances could provide. The breach of duty is important since it establishes that the alleged negligent conduct caused the injury.

Damages

In a malpractice case damages are determined based on the losses you have suffered due to a physician's negligence. This could include financial losses, like future medical bills, and non-economic damages, such as pain and discomfort.

In order to recover damages, you must prove that the doctor violated the duty of care, that the doctor's deviation from the standard resulted in injury, and the injury caused quantifiable financial consequences. This is a complex legal analysis that typically requires expert witness testimony.

Some of these losses can be spotted immediately, for instance when a mistake made by a doctor caused an infection or other medical issues which required additional treatment. Some damage is more difficult to see, such as when the doctor is unable to diagnose your condition and you do not receive the correct treatment.

You can sue wrongful death in the event that a negligent doctor causes your death. You can claim punitive damages in addition to the money you would receive in a survival lawsuit.

In the majority of states, there are limits on the amount you can recover in a legal case. These caps differ from state to state and are generally applicable to both economic and other damages. Certain states also have rules that limit the length of time you have to wait to make a claim.

Time Limits

As with any lawsuit there are time limits to be adhered to or the case could be barred. In general, a malpractice lawsuit must be filed within two to six years after the occurrence of medical malpractice. The deadline varies according to state.

The time frame can be complicated and it is important to consult with a lawyer immediately. The law firm will investigate to determine if there were any mistakes and whether the case will stand up in the court. This process can take months or weeks.

Medical malpractice cases have different laws than other types of cases, and typically, the statute of limitations is changed. In Pennsylvania the patient is entitled to two years from the time that they realized the error. This is called the discovery rule.

In certain states the statutes of limitations begin to run on the date on which the medical error occurred. This can be an issue if the error doesn't cause immediate symptoms. Imagine, for example, that a doctor has negligently left a foreign object in the body of the patient following surgery. The patient might not be aware of the foreign object until at least three years after the surgery. In this case the statute of limitation might have started to run from the date of the procedure, not the moment the error was discovered.

Expert Witnesses

Many medical malpractice cases rely on expert witnesses to help explain the facts of the case. An expert witness for the plaintiff will provide testimony regarding the doctor's duty of taking care of the patient as well as the standards of medical care in the area and the specialization for that type of physician with the same qualifications and experience and the ways the defendant violated those standards. The expert will describe the way in which the defendant's actions directly caused the injury to the patient.

The defendant will hire an expert to challenge the plaintiff's expert, and offer their professional opinion on whether the doctor met the standard of care. It is common for experts to disagree with one other, but the fact finder determines who is most credible based on their expertise and experience.

It is recommended for the expert to be working in the medical profession since they are more knowledgeable about the current practices. Judges and jurors typically find practicing professionals more credible than experts whose only source of income is a testimony in court.

It is also preferable to hire an expert witness that is specialized in the area of the malpractice. A medical expert with prior experience treating breast cancer for instance, can provide a convincing argument as to the reason for an injury. A medical malpractice attorney in Ocala will know what expert witnesses to consult.