In order for medical malpractice to occur, certain elements must exist. The existence of a doctor-patient relationship is fundamental. There must also be a standard of care owed to the patient.
When medical malpractice happens, there is a deviation from the standard of medical care, causing patient injury. In order for a medical malpractice claim to have validity, the patient must be able to prove negligence contributed to the injury. For victims of medical malpractice, determining what steps to take afterwards can be challenging.
Beginning case initiation
A medical malpractice case is initiated when the injured person seeks legal counsel. The attorney will discuss the case with the injured person and review evidence to make a determination on whether or not there is evidence of medical malpractice.
If the patient has a viable medical malpractice claim, the attorney will review medical records and any pertinent case information to help identify what went wrong. Often, the attorney will consult with medical experts and seek other resources to build a strong body of evidence. Once sufficient evidence has been gathered, the attorney will initiate the case by filing a complaint with the appropriate court.
The complaint, TAN and answer stage
The complaint must outline the basic facts of the case to demonstrate the patient is entitled to relief. It will also state the amount of damages sought on behalf of the patient. Factors considered when calculating damages include medical expenses, lost wages and pain and suffering.
Within 10 days of filing the complaint a Track Assignment Notice (TAN) will be sent outlining the case track and estimated discovery length. The complaint and TAN then need to be served to the defendant to let them know a lawsuit has been filed. The defendant must file an answer within 35 days after being served. The answer either admits or denies the statements made in the complaint.
Preparing for litigation
After the answer to the complaint has been filed, the parties begin the discovery process. Discovery is the formal process of exchanging information between the parties regarding evidence and witnesses that will be used to support the case at the trial. This can include anything that will help strengthen the legal argument. Often the patient will be required to submit to a medical examination to corroborate the existence of the claimed injury.
Going to trial
Parties can reach a settlement at any time prior to a trial. Reaching a settlement before litigation begins can be beneficial since trials are often lengthy and expensive. If parties are unable to reach a settlement agreement the case proceeds to trial. During the trial all admissible evidence will be used, both parties will argue their case and a judge or jury will review the evidence in order to make a decision.
Health care providers and organizations owe a duty of care to their patients, but that moral obligation can be easily breached, leading to patient injury. For patients injured by medical negligence, timely filing of a claim is important as New Jersey has a two year statute of limitations for medical malpractice cases.