Medical malpractice lawyers skilled in their craft advise their clients on the importance of gathering the right kind of evidence to support their cases.
Providing effective proof of your claims can mean the difference between a fair settlement or judgement and one that leaves you without adequate compensation for your injuries.
Evidence matters. In this blog, we answer some of the most common questions about which kind of documentation can help your case, including:
- How does early documentation help your case?
- What are the most effective types of evidence?
- How do you secure medical records and documents?
- What role do expert testimonies and opinions play?
- How can photos and video support your claim?
- What’s the best way to preserve communication records?
- How do you find medical malpractice lawyers to represent you?
How does early documentation help your case?
Documenting events, injuries, treatments, and conversations about your case as soon as they occur helps medical malpractice lawyers build a strong case.
Early documentation helps to establish a clear timeline, ensuring all relevant information is recorded accurately and preserved for use in your case.
Gathering eyewitness testimony while the events are still fresh in their minds yields the best results. The longer you wait to get this information, the more likely it is that memory lapses or inaccuracies creep in, tainting your claim.
Most medical malpractice attorneys advise their clients on the importance of gaining access to all relevant information early in their cases.
Doing so preserves the evidence, establishes a timeline, ensures accuracy, and supports the legal process. Not to mention, it plays a pivotal role in determining the strength of your case and can significantly impact the outcome.
What are the most effective types of evidence?
Knowing it’s important to secure documents early in your case is different than knowing which types of evidence are the most effective at supporting your claims.
If you want to bolster your medical malpractice claim, your attorney is likely to suggest focusing on certain types of evidence. They include:
- Medical records and documents. Comprehensive and accurate medical records serve as the backbone of any medical malpractice case. They include patient charts, treatment plans, test results, surgical notes, and other documentation related to your injuries. Medical records can provide crucial evidence about your condition, treatment, and any deviations from the standard of care.
- Eyewitness testimony. Statements from anyone who witnesses the events in question or were present during medical procedures provide powerful evidence. Nurses, healthcare providers, and even family members who were in the room at the time of the alleged malpractice can add weight to your claim.
- Expert witness testimony. Expert witnesses, often medical professionals with expertise in the same field as the defendant, can provide invaluable testimony. They can evaluate your medical records, explain complex medical issues to juries, and offer opinions on whether the healthcare provider’s actions deviated from the standard of care and whether that nonconformity caused harm.
- Physical evidence. If there are physical objects related to the case – medical devices, surgical instruments, biological samples – preserving them for presentation can help you prove your claim.
- Previous lawsuits or disciplinary actions. Medical malpractice lawyers investigate whether the medical provider or healthcare facility received previous disciplinary action or were the defendants of similar lawsuits. If they were, you can use it to show a pattern of behavior that puts patients at risk.
- Informed consent documentation. Your informed consent is required before you receive any medical treatment or surgical procedures. If you were not made aware of the potential risks associated with your care, your attorney can use that information to prove a breach of duty of care.
How do you secure medical records and documents?
Securing your medical records to support a medical malpractice case builds a strong legal argument. You have a right to request your information from medical practitioners and healthcare facilities. Be advised they can charge you fees for making copies of the items before handing them over.
One of the smartest moves you can make to help the process go more smoothly is to consult a medical malpractice attorney. They can guide you through the process and make sure you understand which documents bolster your case.
Your attorney, with your permission, can request your medical records on your behalf. Sometimes, it’s easier to get them promptly when a lawyer is asking for the information.
Steps involved in the process include:
- Notifying relevant parties in writing. Request copies of your medical records and other related documents, keeping a copy of your communication with the healthcare provider or facility. If you’re going through your attorney to get the information, they will submit their request on legal letterhead or from their official practice email account.
- Sign authorization forms. Your attorney requires you to fill out authorization forms that allow them to access your medical records and communicate with healthcare providers and facilities on your behalf.
- Identify relevant records. Work with your medical malpractice lawyer to identify which medical records and documents bolster your case. Some of the most common include doctor’s notes, charts, test results, treatment plans, billing records, and any correspondence from the medical providers involved in the medical malpractice claim.
- Gather and organize documentation. Once you have the requested information, organize it systemically. Create digital and physical filing systems to ensure easy access. Make sure you have backups to prevent loss or damage.
- Maintain the chain of custody. It’s important to establish the authenticity of the documents in court, so you’ll need to keep track of them. Note who has access to the physical copies and when.
- Preserve confidentiality. Ensure that you and your medical malpractice lawyers treat all medial records and documents with the utmost confidentiality to protect your privacy and comply with healthcare privacy laws.
What role do expert testimonies and opinions play?
Securing expert testimonies and opinions plays a crucial role in the success of your medical malpractice case. Typically provided by medical experts with specialized knowledge and experience in the relevant medical field, they can help establish a standard of care and whether a breach of that care occurred.
Besides evaluating the actions of the healthcare provider or facility in question, experts can also:
- Providing causation by establishing a direct link between the healthcare provider’s or facility’s actions (or lack thereof) and your injuries. They can explain how the breach of care led to your harm.
- Educating the jury about complex medical terminology and procedures by breaking them down into simpler terms to help the jury grasp key issues and make informed decisions.
- Rebutting defense arguments from legal experts testifying on behalf of the medical practitioner or facility responsible for your injuries.
- Influencing settlement negotiations by providing strong opinions that favor your case and make the defendant’s medical malpractice insurance company eager to avoid a court trial.
- Supporting damages claims that justify the amount you’re requesting to settle the case in or out of the courtroom.
How can photos and video support your claim?
Photos and videos are powerful tools to support your medical malpractice claim. They visually illustrate your condition, any treatment you receive, and any resulting injuries or complications.
Some of the most effective ways to use photos and videos include:
- Documenting your condition before and after treatment. Photos or videos taken before medical treatment can establish your baseline condition. This is vital if your medical issue is a visible physical condition.
- Illustrating medical procedures and errors. If the alleged malpractice happened during a surgical procedure, photos or videos taken during the surgery (if available) can provide insight into what happened. Visual evidence also can show whether medical devices and equipment were used incorrectly or deficiently.
- Counteracting denials and defenses. Attorneys for medical providers and facilities sometimes claim a patient’s condition was pre-existing. Photos and videos can disprove that defense tactic.
It’s important to verify that any photos or videos used as evidence are accurate, properly labeled, and legally obtained.
What’s the best way to preserve communication records?
Preserving communication records for a medical malpractice lawsuit is essential. They provide critical evidence to support your case.
Make sure you work with a medical malpractice lawyer who respects and follows best practices for preserving communication records effectively, including:
- Identifying relevant communications, including emails, letters, texts, voicemails, and other forms of communication relating to your medical treatment and interaction with healthcare providers.
- Creating a documentation system that includes a dedicated folder on your computer or external hard drive. Keep a physical file system as well as a back-up. Use clear, descriptive file names or labels for each document.
- Avoiding alterations or deletions of any communication records, even if you believe they may be harmful to your case. Tampering with evidence has serious legal consequences.
- Backing up digital records and storing them securely on a separate device such as an external hard drive or the cloud.
- Preserving metadata associated with electronic communication records to establish authenticity and a timeline for the communications.
- Taking screenshots of text messages or exporting them from your mobile device to preserve the conversation thread. Be sure to save both sides of the conversation if possible.
- Complying with preservation orders from the defense if you receive a preservation order or court subpoena for the records.
Your medical malpractice attorney can guide you through each of these steps to ensure you follow best practices to the letter.
How do you find medical malpractice lawyers to represent you?
Finding medical malpractice lawyers to represent you can feel like a daunting task. However, it’s one of the most important decisions you’ll make about your medical malpractice claim.
Research and compile a list of possible attorneys based on personal recommendations, online searches, and information from the local or state bar association. Compare their qualifications and experience, ensuring they specialize in medical malpractice cases and have a proven track record of success.
Then, schedule consultations with your top choices. During your session, evaluate communication and rapport. You’ll also want to consider fee structures and ask to see a standard client contract before deciding on an attorney.
Above all else, trust your gut. Choose an attorney who best fits your case and with whom you feel the most comfortable.