When people sue for medical malpractice they are seeking compensation for harms that they suffered as a result of a doctor’s careless actions. There are a number of steps that must be taken in order to successfully use the legal system to obtain damages from healthcare providers who have committed malpractice. This article provides an overview of the process involved in suing for malpractice and what kinds of damages are available to victims of malpractice.
The first step is determining whether or not you have a case. This is called “planning a claim” and is done by consulting with an experienced medical malpractice attorney. During this initial consultation, the lawyer will review your medical records to determine whether there are grounds for a claim and, if so, what kind of damages you might be entitled to receive.
Generally, to have a valid malpractice suit you must prove that the doctor failed to perform their professional duties. This means that you must show that a doctor, under similar circumstances, would have provided treatment that met the standard of care for your condition. It is important to remember that merely not receiving the results that you wanted or expected from a procedure does not constitute malpractice. To have a successful malpractice lawsuit you must show that the doctor deviated from the standard of care for your particular case. The standard of proof required is “more likely than not.” This is significantly less demanding than the “beyond a reasonable doubt” standard that is used to convict criminal defendants.
Once the medical malpractice attorney has determined that there is a claim, they will file a summons and other legal papers with the court. Then, they will begin the process of gathering information from the defendant physician and others through a process called pretrial discovery. The plaintiff’s attorney will then present this evidence to a jury at trial and must convince the jury that it is more likely than not that the defendant doctor was negligent.
One of the most difficult parts of a medical malpractice case is proving that there was actual harm caused by the doctor’s negligence. This can be very challenging because the injury may not appear until well after the error occurs and many health care professionals do not offer details of their errors to patients.
Another reason it is important to plan a claim quickly is that there are time limitations for filing a lawsuit. In most states, the statute of limitations is two years from the date that the incident occurred or when you discovered (or should have discovered) that you were harmed as a result of the healthcare provider’s mistake.
Depending on your case, it may be appropriate to file the malpractice claim in a federal court instead of a state court. This can occur if there is a diversity of citizenship between the parties, the alleged malpractice involves a violation of a federal constitutional right or if other circumstances warrant filing in federal court.