Understanding Medical Malpractice Lawsuits
August 23, 2019 | Medical Malpractice
Personal injury law, which is also known as tort law, allows someone to pursue legal action against another party that caused bodily harm (medical malpractice lawsuit) or some sort of injury or damages to the individual.
There are many different types of situations that can lead up to a personal injury case, although not all injuries can be tried in a court of law as personal injury cases.
One of the most common examples of a personal injury case involved an area known as medical malpractice litigation.
When medical professionals make a mistake, there is the chance that any resulting injuries was caused by negligence or neglect on the part of the medical team.
In these kinds of case, a malpractice case can be filed against the doctor, surgeon, or medical professional by the patient.
Understanding Medical Malpractice Claims
Medical malpractice claims, because they are one of the personal injury cases commonly seen, usually arise when someone in the medical or health care field fails to provide accurate, competent and proper care.
Due to this error or negligence, the patient suffers some degree of harm.
Medical malpractice lawsuits are some of the most complicated cases that can be taken to the courts, and this is largely due to the fact that so many laws regulate the medical profession and there are many areas of the medical law that are open to interpretation to a degree or that allows for doctor choice and decision to be permissible, even if an mistake was made.
The struggle with a medical malpractice lawsuit is proving the medical professional deliberate ignored warnings, was reckless, or failed to perform basic requirements of their job.
This can be hard if not impossible to do without a medical malpractice attorney!
How to File a Medical Malpractice Lawsuit
If you are the victim of a medical mistake or case of negligence that entitles you to a medical malpractice case or if you think you might have grounds for such a case, you are going to want to familiar with the basic process that is involved in filing a medical malpractice lawsuit.
Here are the basic steps involved in the process:
- Find the Right Lawyer
The first thing you are going to want to take care of is getting down to the decision about who you will hire to be your lawyer and who you want to be representing you and your case before the judge.
After you choose a lawyer and sign a retainer, the case will begin in earnest. It is in your best interest to talk to several attorneys and law firms to get an idea for the services and expenses each one brings so you can make an informed and clear choice for your case.
Always go with an attorney who has experience in medical malpractice cases, even if they are more expensive- the experience is well worth the financial investment. Napoli Shkolnik attorneys work on a contingency basis, which means you pay no upfront legal fees and we only recover a fee when we win your case.
- Review of Medical Records
The first thing your lawyer is going to want to do is talk with you about your case.
You will meet them, likely over the course of several meetings, to discuss in great detail your medical history, the incident at the center of the lawsuit, and the grounds of your case.
Then, the lawyer will get all of your medical records, reports, bills, and other documents pertaining to your case so that they can begin working on building a body of evidence to base your claim upon.
This can take months so it is important to be patient and work with them closely during this time. Once the files are all gathered and reviewed, they can determine how to best approach your case.
- Confirm Proof of Negligence
If they feel that you may have a malpractice case, they will proceed to gather more necessary data and information to strengthen your case.
There will likely need to be witnesses who saw you before during and after the incident and you will definitely want medical experts who will be willing to speak on your behalf.
The medical expert, usually needs to be one that is involved in the same field as the defendant who will confirm negligence occurred and you have a right to your claim.
So for a case involving an anesthesiologist you are going to want another anesthesiologist or someone who works in that medical area to speak about the case.
- Demands and Negotiating
Many personal injury cases end up being ultimately settled out of the court room with an agreement being reached between defendant and plaintiff before the court appearance.
However, this is not as common with medical malpractice cases. The reason is the defendant often will wait till the case as been filed so they can gather their own counter evidence.
They will be able to pull their own documents and find their own witnesses and experts to speak on their behalf.
In a case that their counter evidence is strong enough there may be ground for them to refuse the offer to settle out of court and try to get the judge to rule in their favor.
- The Lawsuit is Filed
Once all of the evidence has been gathered, reviewed, and reordered, it is then time for the lawyer to file the paperwork for the case and submit it for review by the courts.
The filing of the lawsuit starts the clock running on when the case might get to trial.
Each state has different pre-trial procedures so wait time can vary greatly but it will be a long haul regardless in almost all cases as the majority of medical malpractice cases take anywhere from 1-4 years to reach an actual court hearing.
During this time, you and your lawyer will work to find more evidence and further strengthen your case and make sure you are fully prepared for the court date.
When the time comes and the judge gets the case files and all required documentations, he or she will review them and then officially open the case.
At this point, the litigation begins and the parties enter into what is known as the discovery phase.
The discovery process involves each party investigating what the other party is saying about the events leading up to, during, and immediately following the incident at the center of the lawsuit.
So, the plaintiff gets the documents the defendant has presented and vice versa so counter arguments can be prepared for the court hearing.
You will work closely with your attorney during the discovery process.
- Mediation and Negotiation
When the discovery period ends, the lawyers will most likely bring up the terms of restitution and will begin talking about settlement details.
Sometimes the lawyers can settle a case just by talking amongst themselves, but, in other cases, they will go to mediation.
This is the final stage of the process and is the last opportunity to reach an agreement before the actual case goes before the judge for a ruling.
If the lawsuit is settled here it is usually for much less than what the plaintiff is seeking and is usually only done if there is a good chance the judge will rule in favor of the defendant.
It’s a chance to get something if odds are not in your favor.
Often the mediation works, but, in cases where it does not, the lawsuit will proceed to a hearing before the judge.
It might have taken years to get your medical malpractice case to this point and now is the moment you and your attorney have been working so hard to get to.
The entire trial can take weeks and the judge will review both sides’ stories and the evidence that has been gathered and will determine what ruling to hand down for that particular case.
Be sure to work with your attorney and follow their lead and keep the lines of communication open so you both can fight your best fight and stand a better chance at winning your case.
If you need help with your medical malpractice lawsuit or have questions about whether or not you have a case, contact us today and let us lend a helping hand.
We are here to help you or your family member get the compensation they need so call today and schedule your free consultation with our team today.
There is hope to get what you deserve to compensate you for your injury but you must act now so make the call and talk to us today!
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