Malpractice - Filing A Lawsuit

In this article we're going to go over filing a malpractice lawsuit, who can file, how to file and what is involved in proving malpractice.

Like it or not, malpractice lawsuits are a fact of life. The statistics of how many malpractice lawsuits that are filed each year in the United States alone is staggering. But the statistics are for another article.

So what does someone do if they feel they are the victim of malpractice?

For starters, they'd better file their claim early. That means getting a lawyer who specializes in malpractice and have him process the necessary paperwork. There is a statute of limitations on malpractice suits and filing even one day past the deadline can mean your suit never even makes it into court.

When getting together with your lawyer there is an enormous amount of information that you will need to provide him with. Most of it, if this is a medical malpractice lawsuit, can be obtained from your patient files. If the patient has died because of the malpractice then the family member responsible will be able to get access to the files.

Aside from the information in the files there is other information that the lawyer should be provided with. Any actions the patient took prior to the actual treatment should be noted. Sometimes it's what's not in the file that can mean the difference between winning a losing a case. For example, if the patient tried to get certain tests done but for some reason they kept getting put off, not because of the patient, this information may not be in the file. A call to a doctor's office to make an appointment for tests that had to be put on hold won't necessarily be in the file. Anything the patient or patient's family can remember about all events leading up to treatment may be helpful.

Then, after the lawsuit is filed there is the matter of getting a hold of witnesses. These are people who are going to testify, hopefully on your behalf. The defense, of course will get their own witnesses to refute whatever claims are made.

Eventually, a court date is set for trial. The main duty of the prosecution is to prove that a case of malpractice exists. The duty of the defense, in the case of medical malpractice, is to show that a "standard of care" was given and that whatever happened was something that was out of their control.

Needless to say, this is a very long and expensive process. Some malpractice suits can take years to settle. Think about the current Vioxx problem. This is a suit that can go on for a very long time. That's why in the cases of many malpractice lawsuits the two parties try to agree on a settlement to keep the case from going to trial. Sometimes they are able to come to an agreement but many times they are not.

Ultimately, the jury must decide if a case of malpractice exists and if so, what kind of damages the patient is entitled to. Sometimes this is actually the hardest part of the decision making process. Whatever money the plaintiff gets usually goes to cover medical, or unfortunately, sometimes funeral costs.