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How to File a Medical Malpractice Claim

How to File a Medical Malpractice Claim

If you have been hurt as a result of medical negligence, you may be able to file a medical malpractice claim. Medical malpractice claims are some of the most complex claims to file, though, and you may not even know where to start. The first thing you should always do is speak to an experienced NYC medical malpractice lawyer who can advise on how to file this type of claim, and who will help you recover the fair settlement you deserve.

Understand the Concept of Negligence

You may understand that you were injured as a result of the negligence of a doctor or healthcare professional, but unfortunately that is not enough. You must prove that the healthcare professional violated the high standard of care they owed you, and that they breached that duty. This means that you must show the negligent action, or inaction, taken the by the healthcare professional.

Once you have proven a doctor owed you a duty of care and breached it, you must also show that the accident caused you harm. To do this, you must establish the direct link between the act of negligence and the accident. Lastly, you must also show that you sustained injuries as a result. A medical malpractice claim is intended to compensate you for your losses and if you were not injured, there is nothing to compensate.

Know the Statute of Limitations

All personal injury claims in New York are governed by a statute of limitations, and that holds true for medical malpractice claims, too. If you have been hurt by a negligent healthcare provider, you have two years and six months to file your claim. Your claim does not have to be closed or settled, but you must at least file your claim within that time. If you do not, you will forfeit your right to claim any monetary damages related to the accident at all.

Know the Common Causes of Medical Malpractice

Any act of negligence or carelessness can result in an accident that causes injuries. There are, however, some causes of medical malpractice that are more common than others. These include failure to diagnose, misdiagnosis, birth injuries, surgical errors, and a failure to treat. Regardless of what caused your injuries, it is important to file a claim to recover compensation that can help you heal from your injuries.

Determine if Your Case has Merit

Generally speaking, it is always best to speak with an attorney that can help you determine if your case has merit. In New York, you are required to obtain a certificate of merit when filing a medical malpractice claim. These certificates are statements from another healthcare professional who is an expert in the same field as the defendant, and who can testify as to whether or not the case has merit. When determining if a case has merit, the testifying healthcare professional must determine if they would have acted in the same manner in the same situation.

File the Complaint

There are many documents you will have to gather and submit when filing a lawsuit for medical malpractice. In addition to the certificate of merit, you will also have to file a complaint and a summons. The complaint essentially outlines why you are filing a lawsuit and who you are filing it against. The summons, on the other hand, notifies the defendant of the lawsuit and provides them with a date and time they can appear in court to defend the case.

Once you have completed and gathered the necessary documents, you then must file the paperwork with the clerk of the court where you are filing the claim. You will also have to pay a small filing fee. You must also deliver the summons to the defendant, and the majority of plaintiffs use a process server to do this. If you choose to use a process server, you will also have to pay a small fee for their service.

After filing the complaint, the defendant has 30 days to respond to the lawsuit in writing. The defendant will likely respond to the complaint and if they do, the lawsuit will officially begin. In the unlikely event that the defendant does not respond to the lawsuit, the court will assume they are likely guilty and will probably decide in your favor.

The Discovery Process

Every lawsuit involves a discovery process. During discovery, each side can use depositions, interrogatories, and documentation requests to ask the other side for information. This process provides a chance for each side to see what evidence the other party will use against them, and to create arguments that will refute that evidence. Your lawyer will likely handle much of the discovery process, but it is important that you participate when necessary.

Settling Your Case Out of Court

As soon as you file your medical malpractice claim, the insurance company that provides coverage to the healthcare provider will likely contact you and make a settlement offer. This offer will not be enough to fully cover the cost of your injuries, and it is generally advised that you negotiate a fair settlement amount. If you cannot do so, you will need to take your case to trial. However, even when a trial has already started, settlement negotiations between your lawyer and the defendant’s attorney will continue. Your case can settle out of court at any point until a verdict is given or a jury issues their decision.

Let Our Medical Malpractice Lawyer in NYC Handle Your Case

Medical malpractice cases can help you recover the compensation you need to recover from your injuries, but you should never file one on your own. At Silberstein, Awad & Miklos, P.C., our NYC medical malpractice lawyer can help you navigate the process, negotiate for a fair settlement, and ensure your rights are protected at all times. Call us today at 1-877-ASK4SAM or fill out our online form to schedule a free consultation and to learn more about how we can help.