Medical Malpractice Lawsuits

Attorneys hold a fiduciary relationship with their clients and are required to behave with diligence, care and ability. However, like all professionals attorneys make mistakes.

A mistake made by an attorney is negligence. To demonstrate legal malpractice, an victim must prove the breach of duty, duty, causation and damages. Let's look at each one of these aspects.

Duty

Medical professionals and doctors take the oath of using their skills and experience to treat patients, and not to cause further harm. The legal right of a patient to compensation for injuries sustained due to medical malpractice is based on the notion of duty of care. Your attorney will determine if your doctor's actions violated the duty of care and if the breach caused injury or illness.

Your lawyer must establish that the medical professional owed you the duty of a fiduciary to perform with reasonable competence and care. Establishing that this relationship existed may require evidence such as your records of your doctor-patient relationship or eyewitness testimony, as well as experts from doctors with similar qualifications, experience and education.

Your lawyer will also have to show that the medical professional breached their duty of care by failing to follow the accepted standards of their area of expertise. This is often called negligence. Your lawyer will evaluate the defendant's conduct to what a reasonable individual would do in the same situation.

Then, your lawyer has to show that the defendant's breach of duty directly led to injury or loss to you. This is referred to as causation. Your attorney will use evidence like your medical or patient records, witness testimony and expert testimony, to demonstrate that the defendant's inability to meet the standards of care was the direct reason for the loss or injury to you.

Breach

A doctor has a duty to patients of care that reflect the standards of medical professional practice. If a physician fails to adhere to these standards and the failure results in an injury, then medical malpractice or negligence can occur. Expert testimonials from medical professionals who possess similar qualifications, training, skills and experience can help determine the appropriate level of care for a specific situation. State and federal laws, as well as policies of the institute, help define what doctors are required to provide for specific types of patients.

To prevail in a malpractice lawsuit it must be established that the doctor violated his or her duty of care and that the breach was the direct cause of an injury. This is referred to in legal terms as the causation element, and it is vital to prove it. For instance when a broken arm requires an xray, the doctor has to properly fix the arm and place it in a cast to ensure proper healing. If the doctor fails to complete this task and the patient suffers a permanent loss of the use of the arm, malpractice may have taken place.

Causation

Lawyer malpractice claims are based on the evidence that the attorney made errors that resulted in financial losses for the client. Legal malpractice claims can be brought by the party who suffered the loss if, for example, the lawyer is unable to file a lawsuit within the statutes of limitations and this results in the case being forever lost.

It's important to recognize that not all errors made by attorneys constitute malpractice. Mistakes in strategy and planning do not typically constitute malpractice attorneys have the ability to make judgement calls so long as they're reasonable.

The law also grants attorneys an enormous amount of discretion to not conduct discovery for a client, so long as the reason for the delay was not unreasonable or a case of negligence. Legal malpractice is committed by failing to discover important documents or facts, like medical reports or witness statements. Other instances of malpractice include the failure to include certain defendants or claims, such as the mistake of not remembering a survival number for an unjustly-dead case, or the repeated failure to communicate with clients.

It is also important to remember that it must be established that, had it not been the negligence of the lawyer, the plaintiff would have won the underlying case. Otherwise, the plaintiff's claim for malpractice will be rejected. This makes it difficult to file an action for legal malpractice. It's crucial to hire an experienced attorney.

Damages

To win a legal malpractice lawsuit, a plaintiff must demonstrate actual financial losses that result from the actions of an attorney. In a lawsuit, this needs to be proven with evidence like expert testimony or correspondence between the attorney and client. In addition the plaintiff must show that a reasonable lawyer could have avoided the harm that was caused by the attorney's negligence. This is known as the proximate cause.

It can happen in a variety of ways. The most frequent malpractices include: failing a deadline or malpractice lawsuit statute of limitations; failing to perform an investigation into a conflict in a case; applying the law improperly to a client's particular situation; and breaking an obligation of fiduciary (i.e. mixing trust funds with an attorney's personal accounts), mishandling of a case, and not communicating with the client.

Medical malpractice lawsuits typically involve claims for compensatory damages. These compensate the victim for the expenses out of pocket and losses, like medical and hospital bills, costs of equipment needed to aid in recovering, and lost wages. In addition, victims can claim non-economic damages, like pain and suffering and loss of enjoyment of life and emotional distress.

Legal malpractice cases usually include claims for compensatory and punitive damages. The former compensates the victim for the losses caused by the attorney's negligence while the latter is meant to prevent future mistakes by the defendant's side.