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How to File a Medical Malpractice Lawsuit

A medical malpractice lawsuit against a doctor or hospital requires proof that the defendant has violated his or her duty to patients. This evidence could include hospital and medical records.

Our lawyers have experience deposing witnesses in a professional manner. They could be doctors, other medical professionals in private practice, or employees at a hospital or clinic.

Negligence

If a patient is seen by a doctor, hospital or health care professional they are entitled to certain standards of medical care. However, in a few instances these standards are not met or are even violated. This can cause devastating results.

When someone suffers injury or death due to a doctor's negligence, they could bring a lawsuit against the medical professional. To have a valid case the patient who has been injured must establish four legal elements including breach of duty and damages and causation.

Malpractice is described as an act performed by doctors that goes against the accepted norms within the medical field and can cause harm to a patient. It is a subset of tort law that addresses civil wrongs that aren't legally binding or criminal in nature.

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

In a medical malpractice lawsuit the defendant has an obligation to treat the patient in accordance with the standard of care a reasonably prudent healthcare professional with similar expertise and training in similar circumstances would provide. The breach of this duty is a crucial element since it proves that the negligent act caused the injury.

Damages

In a malpractice lawsuit, damages are based on the losses you suffered due to negligence by a doctor. This could include financial losses, including future medical bills, and non-economic damages such as discomfort and pain.

To be able to claim damages, you must show that the doctor did not fulfill the duty of care, that the physician's deviation from that standard resulted in injury, and that the injury was measurable in terms of 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 resulted in an infection or medical condition and you needed to seek additional treatment because of it. Other damage isn't as obvious, for instance if your doctor is unable to diagnose you correctly, and you aren't able to receive the right treatment.

If a doctor's error causes you to die then you can sue for wrongful death. You can seek punitive damages in addition the compensation you'd receive in a survival lawsuit.

In many states, there are limits on the amount you can recover in a malpractice case. These limits vary from state to state and typically apply to both economic and non-economic damages. Some states have laws that limit the time you can wait before filing a lawsuit.

Time Limits

Like all lawsuits, there are time limits which must be observed or the case could be barred. Generally speaking, a medical malpractice lawsuit must be filed within two to six months of the medical malpractice lawsuits occurring. The time limit differs by state.

It is essential to speak with an attorney as soon as possible. The law firm will conduct an investigation to determine whether a mistake was committed and if it could be accepted in court. This phase can last for several weeks or even months.

Medical malpractice cases involve different laws than other types of cases and often the statute of limitations is modified. In Pennsylvania patients are entitled to two years from the date that they discovered the negligence. This is called the discovery rule.

In other states the statute of limitations starts to run from the date the malpractice happened. This could be a problem when the malpractice is not immediately causing symptoms. For instance, suppose that doctors mistakenly leave a foreign object inside the body following surgery. The patient may not discover the foreign object until at least three years after the surgery. In that scenario the statute of limitation might have started to run from the date of the procedure instead of the time of discovery of the error.

Expert Witnesses

Many medical malpractice cases depend on expert witnesses to help explain the details of the case. Expert witnesses for plaintiffs will be able to testify about the doctor's duty of care to the patient and the medical standards for the area and the specialization for doctors with the same qualifications and experience and the manner in which the defendant's actions were in violation of the standards. The expert will also explain how the deviation directly led to the patient's injury.

The defendant will hire an expert to counter the plaintiff's expert and give their professional opinion on whether or not the doctor was in compliance with the standards of care. It is common for experts to disagree with each and yet the fact finder decides who is most credible based on their education and experience.

It is more beneficial for the expert to still be working in the medical field as they will have a better knowledge of current practices. Jurors and judges tend to find practicing professionals more credible than experts who rely only on the testimony of a court.

It is also recommended to get an expert witness who has expertise in the area of the legal malpractice. A medical professional with prior experience treating breast cancer for instance, could present a a convincing argument as to the reason for an injury. A medical malpractice attorney in Ocala will know which experts to talk to.