How do you actually file a medical malpractice lawsuit? The blunt and honest answer is – you don’t. Unless you are a lawyer. And, if you are a lawyer that has suffered medical malpractice and file your own lawsuit, you probably have a fool for a client (yourself).
The reason that non-lawyers should not file a medical negligence suit is that it is simply too technical and you need to know so much information. Here are 5 facts that a person needs to know before he/she files and follows through on a medical malpractice lawsuit.
1. The person filing a lawsuit needs to know and understand the legal basis for the suit.
Most medical malpractice cases are based on the common law of negligence where the plaintiff (the victim of malpractice) must prove that the medical provider had a duty, breached that duty, that the breach caused the plaintiff’s injury, and that the plaintiff was actually harmed. Each of these four elements must be proven.
Occasionally, there may be another basis for a medical malpractice lawsuit. A health care provider may have been reckless or may have done something intentional.
2. The person filing a lawsuit needs to know in which court to file a lawsuit.
This may sound silly, but it is vitally important. If a case is filed in the wrong court, the lawsuit may be dismissed and the plaintiff may be prevented from filing in the right court.
Some states have a unified court system where there are trial courts that have jurisdiction over all cases. However, there are some states that have different courts such as county courts and state courts and their jurisdiction varies as to the type of cases that they can handle.
3. In addition to knowing which court, the person filing a lawsuit needs to know the court’s rules.
Most states have a common set of rules by which all courts operate. These rules include what must be included in the Summons, Complaint, Answer, Counterclaim, and Cross-claim as well as when and how the documents must be served on the opposing party. As a case progresses through the legal process, there may be motions made by one party or the other and the rules state how these motions are to be handled. In addition to the general rules, each court often adopts rules that are specific to that court and must also be followed.
4. Anyone pursuing a lawsuit must know how “discovery” works.
Once a lawsuit is filed, the parties move into the “discovery” phase where they try to learn all about the other side’s case. Discovery methods include interrogatories, request for admissions, request for production of documents, and depositions. Of course, there are rules that must be followed for each of the methods.
5. Finally, anyone handling a lawsuit must know all about actual trial procedures and rules.
To be a fair as possible to all parties to a lawsuit, trials are conducted by following very specific procedures and rules. This includes how jurors are selected, when opening statements are made, how witnesses and evidence are presented, when closing statements are made, and when and what jurors are charged to decide.
The above is a simple summary of the major parts of legal lawsuit. As you can see, there is quite a bit to know, even for a standard case. Medical malpractice lawsuits are more complicated that normal civil cases and sometimes have special rules that apply.
Because of the specialized knowledge required, anyone that has been injured by a medical provider should contact a lawyer and, if they have a case, hire the lawyer to file the medical malpractice lawsuit.
The above information is general information only. If you have any questions whatsoever, talk with a lawyer licensed in your state.