What Legal Elements Must Be Established In Order To File A Medical Malpractice Lawsuit?

  • July 5, 2021

Medical malpractice laws vary from state to state. Still, the basic procedural steps tend to remain the same.

Required features in a medical malpractice lawsuit

The medical professional being accused of malpractice has failed to follow the accepted standard of care. A jury should receive details on that standard of care from someone with a level of experience and training that equals that received by the defendant (the doctor charged with malpractice). The same professional provided the patient that has filed the lawsuit with a sub-standard level of treatment.

A primary challenge for the plaintiff’s lawyer: explaining the standard level of care

The best approach entails finding an expert witness. That should be someone that is familiar with the complexities in the plaintiff’s case. By the same token, the expert witness should have the same training and experience as the doctor that has, allegedly, been guilty of malpractice.

Often the expert witness must sign an avadavat of merit, in order for the witness’ testimony to become used as an example of the standard of care. Any physician that signed such a form, while lacking the required experience and training, could be charged with the sharing of fraudulent information.

An expert witness should be up-to-date on the latest treatment(s) for the plaintiff’s injury. The Personal Injury Attorney in Evanston advocating for either side in a medical malpractice case should also remain aware of how treatment practices have changed.

How the victim of malpractice should approach the task of posing questions to a considered attorney?

A good attorney should seek to learn as much as possible about the potential client’s case. The client should seek to determine how familiar the questioned attorney has become with the terms used during an explanation of the basis for the lawsuit.

If the possible client were to learn that a considered lawyer had never heard or read of a specific treatment, then that could indicate that the same attorney had failed to stay up-to-date on advances in a field that could impact the treatments provided to potential clients. Understand that some personal injury lawyers claim to have expertise in a certain type of injury.

Of course, it is also possible that the administered, sub-standard treatment had been one that was seldom used anymore. In that case, the consulted lawyer might not have heard of it, because the lawyer’s efforts had focused on learning about the most recent types of treatments.

That possibility underlines the reason that an expert should offer testimony at any trial. An expert should be able to appreciate the reason that a member of the legal profession might not have heard or read about a certain approach to treating patients with conditions like the plaintiffs.