A medical malpractice lawsuit is a patient's attempt to receive compensation for a lapse of proper medical care. These damages are caused by medical providers such as doctors, hospitals, clinics, nurses, technicians, or a combination of providers.
The amount of care that a patient should receive is determined by the type of medical provider involved and the community in which the provider practices. For instance, a cardiac specialist is judged by a standard given to other cardiac specialists in the provider’s community or a similar setting.
Medical malpractice, or negligence, is never presumed and must be proven by the injured party. The injured party must normally use an expert witness to establish the degree of care required and explain why the defendant failed to give proper care. There are various steps to a medical malpractice lawsuit that you should be aware of if someone in your family may be a victim of medical malpractice.
Investigation
When you hire a malpractice lawyer, he or she will need to investigate your case to determine if a lawsuit is possible. To do so, your attorney will need to interview you extensively about facts leading up to the injury. This investigation will include reviewing relevant medical records, speaking with witnesses, and discussing the case with a medical expert. At this step in the process, the attorney will not have access to all evidence, but there may be enough information to proceed with a lawsuit. The investigation step normally takes several weeks to several months.
Screening Panel
Some jurisdictions provide a malpractice screening panel to review a case before or immediately after a lawsuit is filed. The point of a screening panel is to have the case reviewed by other doctors, attorneys, or related professionals who can make recommendations. Medical records and other evidence can be presented to the panel. The decision of the panel is usually not binding for the involved parties.
Pleadings
After the screening-panel step has been concluded or ruled out, the pleadings in the case are filed and the lawsuit begins. The plaintiff’s attorney will prepare a petition or complaint, which will be served to the defendant medical provider and any other parties. The defendant will normally have 20 to 30 days to respond.
Discovery
After the petition has been answered by the defendant, the case will proceed to discovery. This is a step in the lawsuit where the defendant will be permitted to obtain information from you. Likewise, you will be able to obtain information from the defendant. The defendant will ask about your medical condition, both prior to the lawsuit and subsequent to the lawsuit. If lost wages are claimed, the defendant can obtain employment records, income tax records, and other financial information. Medical records and statements of various witnesses can also be obtained.
Later in the discovery step, depositions will be conducted. A deposition is a proceeding in which the defendant’s attorney can ask you questions under oath. A court reporter will record the statement, just as in a court proceeding. Your attorney will normally take the deposition of the medical provider and key witnesses.
The court will normally set a time period for obtaining discovery. At this step, it is extremely important to remain in contact with your attorney and to respond to requests for information promptly. Discovery normally can go for months to a year or more.
Pretrial and Mediation
The court will conduct a pretrial conference with the attorneys to narrow the issues for trial, set a trial date, and explore whether settlement is possible. The court may order the parties to mediation. Mediation is a process to work out an agreement between the parties and settle the case. If the case is settled, no trial is necessary. If no settlement is reached, the case will proceed to trial.
Trial
This is the most familiar of the lawsuit steps, though most cases do not go to trial. If your case is in trial, you will be required to testify and provide all witnesses in your favor. The defendant will present evidence and your attorney will be permitted to cross-examine any witnesses offered against you.
Most medical malpractice cases are before a jury, which will be required to determine if the medical provider was negligent, and if so, whether the negligence caused damages to you. If so, the jury will determine the amount of damages. These can be for medical expenses, lost wages, pain, suffering and trauma, rehabilitation costs, and other damages. The jury will give a verdict to the trial judge and in most cases, the verdict will be upheld.
