Patients who have suffered harm as a result of medical negligence have the right to claim damages from the doctor guilty of medical malpractice, the staff who assisted him, or the facility where the doctor works, such as a hospital or clinic. In order to claim damages, the injured party must file a criminal or civil lawsuit or both. To sue a doctor for medical malpractice, do the following.
Steps
Method 1 of 1: Steps to Follow
Step 1. Decide who to sue
There are circumstances in which there are third parties to be held liable for the doctor's negligence. Some considerations to make when determining who to sue include:
- Who is the culprit of negligence? A doctor who gives inadequate care than he should, causing harm, is considered negligent and subject to receiving a medical malpractice complaint. In the case of some types of damage, multiple individuals or entities may have contributed to the damage. For example, a laboratory technician who misinterprets an X-ray and the doctor who accepts his diagnosis without examining the results in person, can both be held responsible for damage caused by a misdiagnosis.
- Who has the "full wallet"? "Having a full wallet" is a legal term used to refer to a person or entity who has substantial financial resources, making them the ideal target for any legal action. For example, the hospital where a nurse works who has caused harm to a patient would be a better target for a medical malpractice lawsuit against the nurse himself, because he has more financial resources.
- The principle of "Respondeat Superior". The principle of "Respondeat Superior" attributes to the employer the responsibility for the actions of his collaborators, as long as these actions fall within the working environment. Thus a hospital is liable for the negligence of a laboratory technician, nurse or doctor who works at the hospital and caused harm to a patient while performing his or her duties.
Step 2. Determine the most appropriate venue in which to file the complaint
You can sue in both criminal and civil courts or both. Also keep in mind the place where the medical malpractice occurred and the nationality and place of residence of everyone involved.
- If all parties are resident in the same European country, you can file your complaint with any civil court in that country.
- If all the parties to the dispute reside in different European member states, you could open a civil case in your country. It will depend on the laws of the countries of residence of the involved persons and on the place where the medical malpractice was practiced.
Step 3. Prepare a complaint
A medical malpractice report must be based on the negligence of a healthcare professional. This negligence is defined by several elements, all of which must be set out in your complaint. These elements include:
- The duty to care. Before anyone is found guilty of negligence, he or she must have had some duty to care for the injured party. Many daily activities impose civic duties on one side to the other. For example, when driving a car, a motorist has a duty of care towards pedestrians and other cars on the road. A healthcare professional has a duty of care only towards their own patients, so a general practitioner who shares an office with another doctor who has caused harm to a patient cannot be held liable for the harm just because he or she shares an office. with the manager.
- A breach of that duty. Once it is established that a healthcare professional had a duty of care towards a patient who has suffered harm, he or she must then demonstrate that the healthcare provider has failed to do so by providing poor care, or treatment deemed to be "beyond below the standards of the medical profession required in the community where it practices ".
- Injury or damage. Failure by the operator to perform his duties must have caused injury or damage to be found guilty of medical malpractice. While you are not required to go into specific details, you must declare that some damage or injury has occurred.
- Next cause. The negligence of the health care worker must be the immediate, or primary, cause of the damage suffered in order for him to be held responsible for the damage suffered. The proximate cause need not be the sole cause of the damage; it simply has to be its primary cause. In order to determine the proximate cause, many courts try to determine whether the damage would have occurred anyway, regardless of the operator's negligence.
Step 4. File your complaint
You can file your complaint with the court in person or by registered mail. It would probably be best to file your complaint in person, so that you can make sure that you have paid the correct amount of the fee to file your appeal. Also, if something is missing from the documents, the employee can let you know right away. It is advisable to call the court in advance and ask how much the appeal fee will cost, and how it should be paid: cash, money order, check, or credit card, in order to provide the correct amount in the requested form.
Step 5. Prepare for the hearing
There are many things to do after filing your complaint and before attending the hearing, and it may be a good idea to consult a lawyer to make sure you are properly prepared and have taken all the steps required by law. To prepare for the hearing:
- Hire an expert. A medical malpractice lawsuit requires the testimony of an expert testifying about the standard of care in your community and declaring that the aforementioned standard has been breached by any of the defendants.
- Prepare your witnesses. Make a list of questions to ask them and prepare them for the hearing by asking them your questions and getting them to answer. Both you and the witnesses should keep copies of the questions and answers. The experts have testified in court often, probably, and they will know how to move. They could also be of great help in preparing your other witnesses.
- Do your research. If there is something you don't know about the healthcare provider, such as his defense strategy, his side of the story, or which witnesses he might call the counter, find out his moves. Request in writing that evidence be produced prior to the hearing. It would be advisable for you to consult a lawyer to get information regarding the rules that establish what are the facts that the defendant is obliged to present and how he must present them.
- Prepare your evidence. Make several copies of the documents and photographs you wish to present as evidence so that you can provide one to the court, one for each of the other parties to the case and one for you to keep. He also prepares graphs, medical records or giant pictures to present before or during the hearing.
Step 6. Attend the hearing and present your case
Make sure you follow all the rules and respect the decorum of a courtroom, for example, call the judge, "Mr. Magistrate" or "Judge" and speak only when it is your turn.
Warnings
- You have a limited time frame to sue a doctor for malpractice. Generally, no more than two years from the date the damage was caused, the date the damage was discovered or the date by which you should reasonably have discovered it. Check the applicable laws or consult an attorney to determine how much time you have.
- You cannot sue anyone for medical malpractice in Denmark, New Zealand, Norway and Sweden. These countries have existing medical malpractice laws, which offer compensation in exchange for the right to sue.
- You should consult a lawyer before taking any action that may affect your legal rights or obligations.
- When defending yourself in court, you are expected to know and follow all the rules that lawyers should follow. Be sure to read the Civil Code and any local laws published by the court in your region.
- You can face a hefty fine if you sue for no valid reason. Make sure your legal theories are sound and your complaint is supported by facts before proceeding with a medical malpractice lawsuit.
