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How to File a Medical Malpractice Lawsuit

In order to bring a medical malpractice lawsuit against a physician or hospital, you must have evidence that the defendant has violated their duty towards patients. This can be evidence from hospitals and medical records.

Our lawyers have years of experience in taking depositions that are effective. These may be doctors or other medical professionals in private practice, or even staff members at a clinic or hospital.

Negligence

Patients have the right to be treated with respect to certain standards when they visit a doctor, hospital or health professional. Unfortunately, these standards are not always adhered to or even observed. This breach could have devastating results.

When someone suffers injury or death as a result of a doctor's malpractice, they may sue the medical professional. In order to have a legitimate claim, the injured patient must demonstrate that there are four legal elements in place in the case: breach of duty, causation, and damages.

Malpractice is defined as an act or omission by a physician that deviates from the accepted norms of practice within the medical profession, and results in injury to the patient. It is a component of tort law, which deals with civil wrongs, not criminal offenses or contractual obligations.

Medical negligence is distinct from regular negligence in that the victim must show that the doctor was aware that their actions would cause harm in order to prove malpractice, whereas normal negligence doesn't. A surgeon who accidentally nicks or cuts a vein or nerve during surgery is guilty of negligence, but not malpractice. This is because the doctor didn't intend to harm anyone.

In an instance of medical malpractice the defendant's obligation is to treat the patient in line with the standards of care that a reasonably knowledgeable health professional with similar experience and education would offer in similar circumstances. The breach of duty is significant because it proves that the alleged negligence caused the injury.

Damages

In a malpractice case damages are determined based on the losses you have suffered caused by a doctor's negligence. This could include financial losses, such as future medical costs, as well as non-economic losses like discomfort and pain.

To be able to claim damages, you have to prove that the doctor violated the duty of care, that the doctor's deviation from that standard caused injury, and this injury resulted in quantifiable financial consequences. This is a complex legal analysis that typically requires expert witness testimony.

Some of these losses are obvious for instance, if your doctor made an error that caused an infection or other medical problem, and you needed additional treatment due to the result. Certain damages are more difficult to see, such as when an expert misdiagnoses your illness and you cannot get the proper treatment.

If a doctor's error causes your death, you can sue for the wrongful death. In these claims you are legally entitled to all the compensation you would have gotten in a survival case, plus punitive damages.

In most states there are limits to the amount you can recover in a malpractice case. These caps vary by state and typically apply to both economic and non-economic damages. Some states also have rules that restrict the time it takes to bring a lawsuit.

Time Limits

As with any lawsuit there are time limits which must be followed or the case could be dismissed. A malpractice lawsuit should generally be filed between two and six years following the time when the mishap occurred. The deadline for filing a malpractice lawsuit varies from state to state.

The time limit is complicated, so it is vital to consult with an attorney immediately. The law firm will conduct an investigation to determine if malpractice occurred and if it will be accepted in court. This stage can take weeks or even months.

Medical malpractice cases involve different laws than other types of cases and often the statute of limitation is extended. In Pennsylvania the statute of limitations for medical malpractice is two years from the time that they discovered the negligence. This is known as the discovery rule.

In certain states the statutes of limitations begin to run on the date on which the malpractice occurred. This is an issue when the mistake does not immediately trigger symptoms. Imagine, for example, that a doctor has negligently left a foreign body inside the patient's body after surgery. The patient may not discover the foreign object until three or more years after the surgery. In that scenario, the statute of limitations could have start running from the date of the procedure, not the discovery of the error.

Expert Witnesses

Many medical malpractice cases depend on expert witnesses to help present the facts of the case. An expert witness for the plaintiff will testify regarding the doctor's duty to the patient, the medical requirements for doctors with similar qualifications in the same area as well as the specific ways the defendant deviated from those standards. The expert will explain how the defendant's deviance 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 was able to provide the required care. The experts could disagree but the fact-finder will decide which expert is the most credible.

It is advisable for the expert to be still working in the medical field since they are more knowledgeable about the current practices. Jurors and judges typically consider practicing professionals more believable than experts whose sole source of income is testifying in court.

It is also advisable to have an expert who specializes in the field of malpractice. A medical expert who has expertise in treating breast cancer, for example, can make an argument that is convincing as to the cause of an injury. A medical malpractice attorney in Ocala will know the best experts to speak with.