How to Sue for Medical Malpractice -114 ~ Lawyers And Medical Malpractice

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Σάββατο 14 Σεπτεμβρίου 2013

How to Sue for Medical Malpractice -114

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Persons injured as the result of medical malpractice, may be able to recover damages from the provider who caused the injury, medical personnel assisting the provider, or the offending provider’s employer, such as a hospital or clinic. In order to recover damages, an injured party must generally file a lawsuit, or medical malpractice claim, with the Court. To sue a healthcare provider for medical malpractice, follow the steps below.

Edit Steps

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Sample Complaint

Sample Medical Malpractice Complaint

Steps to Take

1
Determine who to sue. There are circumstances in which someone other than the direct provider may be legally responsible for the provider and his or her negligence. Some things to consider when determining who to sue include:
- Who was negligent? A provider whose care falls below the accepted standard of care in your area, causing injury, is negligent and subject to a medical malpractice lawsuit. In the case of some injuries, more than one provider may have contributed to the injury. For example, a lab technician who incorrectly reads an x-ray and the doctor who accepts the technicians diagnosis without reviewing the x-ray him or herself may both be responsible for injury caused by the incorrect or misdiagnosis.
- Who has the “deep pockets?” Deep pockets is a legal term used to describe a person or entity that has significant financial resources, which makes them the target of lawsuits. For example, the hospital where a nurse who caused injury to a patient works may be a better target of a medical malpractice lawsuit than the nurse may, because it has more financial resources, or deeper pockets.
- The doctrine of Respondent Superior. The doctrine of Respondent Superior makes an employer liable for his or her employees’ actions when those actions are within the scope of employment. A hospital then may be responsible for the negligence of a lab technician, nurse, or doctor who is an employee and caused injury to a patient during his or her fulfillment of duties to the hospital.
2
Ascertain the most appropriate Court in which to file your lawsuit. The parties’ state and county of residence, as well as the state where the injury occurred will help you determine which Court is most appropriate.
- If all parties are residents of the same state, you may file your suit in any Civil Court in your county of residence or one of the other party’s county of residence.
- If all parties are residents of different states, you may be able to file suit in your state’s Civil Court, in the county in which you reside. It will depend upon your state’s jurisdiction, or long arm statutes and your physical location when the injury occurred.
3
Prepare a Complaint. A complaint for medical malpractice is based on the negligence of the healthcare provider. Negligence is comprised of several elements, all of which must be addressed in your complaint. These elements include:
- A duty of care. Before a person can be found guilty of negligence, he or she must have owed an injured party some duty of care. Many everyday activities result in a party owing others a duty. For example, when driving a car, a motorists owes a duty of care to the pedestrians and other motorists on the road. A healthcare provider only owes a duty of care to his or her own patients, so a primary care physician who shares an office with a doctor who allegedly injured a patient cannot be held responsible for the injury simply because he or she shares an office with them.
- A breach of that duty. Once it has been established that a healthcare provider owed an injured patient a duty of care, the patient must then establish that the provider breached that duty by providing substandard care, or care which “falls below the standards of the medical profession in the provider’s community”.
- Injury or harm. The healthcare provider’s breach of duty must have caused injury or harm, in order for him or her to be found guilty in a negligence claim. While you do not need to spell out the specific injury and/or harm in your complaint, you must state that some harm or injury occurred.
- Proximate cause. A healthcare provider’s negligence must be the proximate, or primary, cause of the injury before he or she will be held responsible for the injury. The proximate cause does not have to be the only cause of the injury; it must simply be the primary cause of it. In order to determine proximate cause, many Courts use the ‘but for’ test, looking at whether the injury would have been caused but for the negligent act of the defendant.
4
File your Complaint. You may file pleadings with the Court personally or by mail. It is probably best to file your Complaint in person so that you can ensure the amount of the filing fee you include is correct, and if anything is missing from your documents, the Clerk can let you know right away. You may want to call the Clerk’s Office ahead of time and ask what the filing fee will be and in what form it must be, cash, money order, personal check, or credit card, so that you will have the correct form of payment and the correct amount.
5
Prepare for your hearing. There are many things to do between filing your complaint and attending your hearing, and it may be a good idea to consult with an attorney to ensure proper hearing preparation and compliance with the law. To prepare for your hearing you should:
- Hire an expert. Medical malpractice claims require expert testimony regarding the standard of care in the community and whether or not said standard was breached by any of the defendants.
- Prepare your witnesses. Make a list of the questions you will ask them, and practice asking and answering the questions together. You should each keep a copy of the questions and the answers. Expert witnesses have generally testified often enough that they will know the drill and could even be of great assistance to you in preparing your other witnesses to testify.
- Conduct discovery. If there is anything, you do not know about the provider’s case, such as what defenses he or she may have, what his or her version of events is, or what witnesses he or she may call, find out, by sending interrogatories, or a request for production or admission. You may wish to consult with an attorney for information regarding discovery rules and to obtain assistance in with the discovery process.
- Prepare your exhibits. You will need enough copies of any documents or photographs you wish to submit as evidence that you can give one to the Court, one to each of the other parties, and retain one for yourself. You will also need to have charts, graphs, or blow-ups of images prepared and ready to set up before or during the hearing.
6
Attend the hearing and put on your case. Be sure to follow all the rules and comply with appropriate Courtroom decorum, such as calling the Judge, “your Honor” or “Judge” and only speaking when it is your turn.

Edit Warnings

You should consult with a licensed attorney before taking any action which may affect your legal rights or obligations.
You have a limited amount of time to sue a healthcare provider for medical malpractice. Generally, two years from the date you were injured, the date you discovered the injury, or the date upon which you reasonably should have discovered the injury. Check your state’s statutes or consult with an attorney to determine how long you have to file suit in your state.
When representing yourself in Court, you are expected to know and follow all of the same rules that attorneys must follow. Be sure to read your state’s Rules of Civil Procedure and any local rules published by your County Court.
Filing a frivolous lawsuit can get you a hefty fine. Be sure that your legal theories are sound and your suit is supported by the facts before proceeding with a medical malpractice claim.
You can't sue anyone for medical malpractice in Denmark, New Zealand, Norway and Sweden. All these counties have no-fault medical malpractice schemes which offer compensation in exchange for the right to sue.

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