How to File a Medical Malpractice Lawsuit
In order to bring an action for medical malpractice against a doctor or hospital you must prove that the defendant has breached their duty to patients. This evidence may include medical and hospital records.
Our attorneys have a wealth of expertise in obtaining depositions that are successful. They could be doctors or other medical professionals in private practice, or staff members at a hospital or clinic.
Negligence
Patients are entitled to be treated with respect to certain standards when they visit a doctor, hospital or health professional. Unfortunately, these standards are not always met, or even violated. This breach could have devastating results.
If someone suffers injury or death due to 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 demonstrate that four legal elements are present such as breach of duty, causation, and damages.
Malpractice is defined as an action by a doctor that is outside the accepted norms within the medical profession and results in injury to a patient. It is a subset of tort law, which deals with civil violations that are not legally binding or criminal in nature.
Medical negligence is distinct from regular negligence because the victim must show that the doctor knew or should have known that their actions could cause harm to be able to claim malpractice, however normal negligence does not. For example, a surgeon who accidentally cut a vein or nerve during surgery could be 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 an obligation to treat the patient according to the standard of care that a reasonably prudent healthcare professional with comparable experience and training in similar situations would provide. The breach of duty is important because it demonstrates that the alleged negligence caused the injury.
Damages
In a case of malpractice, damages are calculated based upon your losses caused by a doctor’s negligence. They can be a combination of financial loss, like the expense of medical treatment in the future, and non-economic losses like suffering and pain.
To claim damages, you have to prove that the doctor did not fulfill a duty of care, that the doctor’s deviation from the standard of care caused injury, and that this injury resulted in quantifiable financial consequences. This is a complex legal analysis that usually requires expert witness testimony.
Some of these losses are obvious for instance, if your doctor made an error that led to an infection or medical condition that required additional treatment in the aftermath. Other losses are not as apparent, such as when your doctor has misdiagnosed you and you are unable to get the correct treatment.
You may sue for wrongful deaths when a doctor’s negligence caused your death. You may seek punitive damages in addition the compensation you’d receive in a survival lawsuit.
In most states, there are limits to the amount you can get in a malpractice case. These limits vary from state to state and are often applicable to both economic and other damages. Some states also have rules that limit how long you can wait to bring a lawsuit.
Time Limits
As with all lawsuits there are time frames that must be observed or the case could be dismissed. A malpractice suit must typically be filed between two and six years after the incident occurred. The timeframe for filing a malpractice lawsuit is different for each state.
It is important to consult an attorney as soon as possible. The law firm will conduct an investigation to determine if there was a malpractice occurred and if it will be accepted in court. This phase can last for weeks or even months.
Medical broussard malpractice lawsuit cases have different laws than other types of cases, and typically, the statute of limitations is altered. For example, in Pennsylvania the patient must file a claim within two years from the date they realized the malpractice or the date a reasonable person would have recognized that the harm existed. This is referred to as the discovery rule.
In other states the statute of limitations begins to run from the date the malpractice occurred. This can be an issue when the mistake is not immediately causing symptoms. For instance, suppose that doctors mistakenly leave a foreign object in the body following surgery. The patient might not find the foreign object until three or more years after the surgery. In this situation, the statutes of limitations could have started beginning from the date of surgery rather than the moment of identifying the error.
Expert Witnesses
Expert witnesses are frequently asked to provide facts in medical malpractice cases. A plaintiff’s expert witness will testify about the doctor’s duty of providing medical care to the patient and the medical standards applicable to the area and the specialization for that type of physician with similar qualifications and skills and the ways in which the defendant’s actions were in violation of the standards. The expert will describe how the defendant’s deviance directly impacted the victim’s injury.
The defendant will employ an expert to counter the plaintiff’s expert and offer their professional opinion on whether the doctor was able to provide the required care. It is normal for experts to differ with each and yet the fact finder decides who is the most trustworthy based on their experience and education.
It is more beneficial for an expert to working in the medical field as they will have a more knowledge of the current practice. Judges and jurors typically consider professionals who are practicing more credible than experts whose sole source of income is testifying in court.
It is also beneficial to choose an expert with expertise in the field of malpractice. A medical professional who has expertise in treating breast cancer, for instance, vimeo can provide an argument convincingly as to the reason for an injury. A medical malpractice attorney in Ocala will know what experts to speak with.
