How to File a
Medical Malpractice LawsuitA patient who believes that he is suffering a loss due to the negligence of a healthcare provider can file a medical malpractice (
sites) lawsuit. These cases are different from the typical personal injury lawsuits by using the standards of professional care to determine negligence.
In the United States, malpractice claims are resolved through state trial courts. Each state has its laws and procedures.
Duty of care
A surgeon, doctor or nurse or any other health professional, owes their patients a duty of care. This legal principle states that anyone who is a health professional treating you has a duty to follow the accepted medical procedures.
The medical standard of care is a legal yardstick to which any medical malpractice claim is judged. It is crucial to a successful case, since it allows for the victim as well as their attorney to demonstrate negligence by proving that the medical professional did not adhere to the standard of medical care.
Proving the standard of care often requires the assistance of a medical expert witness. Experts like these are crucial to establish the relevant medical standard of care and the manner in which the standard was violated by the defendants in a
medical malpractice attorneys malpractice case.
In addition it is imperative to establish that the breach of duty caused your injury or illness. In medical malpractice claims damages could include hospital bills and lost income future earning capacity, pain, suffering, and even punitive damage. Your lawyer must establish the exact amount of the damages, which could be greater than your initial medical expenses. In certain cases it's easier than in others. A lot of doctors work in hospitals that give them staff privileges, and in those situations, a physician's employer may be held responsible via theories of vicarious liability.
Breach of duty
A doctor is bound to the patient to follow medical standards of care in providing treatments or services. If a physician violates this duty and suffers injury an injured patient can seek compensation for malpractice.
Medical negligence could refer to an array of actions including mistakes in diagnosis, medication dosage, health management, treatments and post-care. A lawsuit is considered valid if the plaintiff is able to prove four legal elements. These include:
First, there has to be a connection between doctor and the patient. The doctor has the obligation of informing the patient of any potential risks or issues that may arise from the procedure. Failure to do this could render the doctor liable for malpractice, even if the procedure was carried out perfectly. If the doctor did not inform the patient that a particular surgery had 30% chance of losing limbs then the patient could not have consented to it.
The second aspect to be proved is a breach of the standard of care. To show that the doctor did not follow from the norm, the lawyer will need expert witness testimony. It must also be established that the breach of the standard of care led to the patient's injuries.
It takes a long time to settle medical negligence claims in the court system. This includes a great deal of physician and attorney time, thorough review of documents, appointing experts and conducting research into the medical and legal literature. A doctor who is facing a malpractice lawsuit must pay substantial court fees, attorney's work products and costs, and expenses for expert testimony.
Causation
Doctors, nurses, and other healthcare professionals are human beings and they make mistakes. When their mistakes are so bad that they reach the level of medical malpractice, patients suffer grave and life-altering injuries. It takes the expertise of both lawyers and doctors to prove that a healthcare provider has acted in breach in duty that caused injury. A successful claim requires four legal elements to be established: a physician-patient relation and the duty of the doctor to care for the patient, the doctor's breaching that duty, and finally, the harm that resulted from the breach.
The injury has to be proven to have been caused by a doctor's deviation from the standard of medical care. The legal standard for this aspect is higher than the "beyond a reasonable doubt" required in criminal cases. The lawyer for the plaintiff must convince the jury or fact finder that it is more likely than not that the doctor's actions were negligent, and that negligence was the primary result of the injury.
An expert medical witness is often required early in the process to establish all of these factors. Under Rhode Island law, only doctors who have sufficient qualifications, training, skill, and knowledge in the field of the suspected malpractice can provide expert testimony on the matter. This is the reason why selecting a qualified medical expert is an essential element of an investigation into a case of malpractice.
Damages
Medical malpractice lawsuits are designed to collect damages that include future and past expenses that are that result from an injury. These costs could include hospital bills, doctor's visits, pain and discomfort, and lost wages. The jury will determine the amount of damages awarded according to the evidence presented.
The plaintiff or their attorney must establish four legal elements during the trial: (1) the physician had a duty to them; (2) the doctor breached this duty by negligence; (3) the doctor’s negligence caused injuries; (4) the injury led to measurable damages. A dissatisfaction with a doctor's work is not considered to be negligence, but a real injury must be present. A medical professional can determine if a doctor has deviated from standard care.
The legal process for a malpractice case could last for several years. This is because "discovery" involves the exchange of documents and sworn statements of the parties involved. While many cases end up being settled before reaching the courtrooms, a portion of these claims go all through to a jury trial and verdict.
To limit malpractice liability Some states have taken various administrative and legislative measures collectively known as tort reform. A few states have implemented alternative dispute resolution schemes like binding arbitration. These alternatives to civil litigation are designed to cut down on costs of litigation, speed up the settlement and handling of malpractice claims, reduce the number of generous juries, and screen out claims that are not worth the effort.