How to File a Medical Malpractice Case

A patient who finds a foreign object such as surgical clamps within her body following gall bladder surgery could file a lawsuit for medical malpractice. A successful claim must demonstrate the elements of medical malpractice: duty, deviation from the duty, and direct cause.

Our clients must establish a direct connection between the breach of duty, and the injury. This is referred to as proximate cause.

The reason for injury

A medical malpractice lawyer malpractice lawsuit can be filed either by the victim or a legal representative. Depending on the circumstances this may be the spouse of the patient or an adult child, parent, a guardian ad litem or the executor or administrator of the estate of the patient who died. In a case involving medical malpractice, the defendant is the health care provider. This could be a doctor, nurse, therapist or any other licensed health professional.

Malpractice cases typically involve an abundance of expert testimony. Medical experts must provide evidence to prove that the medical professional did what was required of care in his or her special area of expertise. They must also testify as to the harm resulting from the actions or inactions of a doctor.

The consequences of negligence and mistakes can be devastating. For instance, a wrong diagnosis of a health problem could result in life-threatening consequences. Other types of injuries can include operating on the incorrect body part or leaving surgical instruments inside the patient.

To prove a malpractice case the patient must prove four legal elements: a duty that the doctor owed to them; a breach of this duty; a resultant injury; and damages. In certain states, like New York, the law restricts the amount of money that could be awarded for the malpractice claim.

Causation

The element of injury is known as the causation. It is among the most crucial aspects of a medical malpractice claim. To prove causation, the plaintiff must show that they sustained their injury based on a balance of probabilities due to of the negligence of a physician. This can be a challenging job due to various reasons.

A lot of the injuries that form the basis of medical negligence lawsuits result from chronic conditions that existed prior to when treatment started. Often, the statute of limitations for a claim involving medical malpractice is extended over a period of years, and injuries can develop gradually.

In these cases the proof that a medical professional's violation of the standard of care led to the injury can be difficult. However, the aggrieved patient could be able to make use of the evidence collected by the attorney, including medical documents and expert testimony.

During the discovery process, which is a part of the legal procedure getting ready for medical trial, your lawyer may request the disclosure of expert testimony and other documents from the lawyers representing the defendants. The doctor who is representing the case will be required to give deposition. This is a declaration which is under oath. Your lawyer will be able to challenge the doctor's findings and cross-examine them. The jury will decide whether the plaintiff has proved the facts of the case including breach of duty, breach of contract and causation.

Negligence

When a medical malpractice claim is filed the plaintiff has to convince the jury that it was more likely than not that the doctor breached his or her professional obligations and that those violations caused harm. The lawyer representing the plaintiff must show this through evidence gathered through pretrial discovery, which entails asking for disclosure of documents such as medical records from all parties involved in the lawsuit. The process also involves swearing statements that are recorded and used in trial.

A doctor has breached their professional obligation by doing something that reasonable and prudent doctors would not have done under similar circumstances. It must be established that the breach resulted in injury directly to the patient. This is called causation or proximate causes. For instance an individual goes to the hospital for a hernia operation and is then able to have his or his gall bladder removed instead. This is medical negligence as the removal did not benefit the patient.

Medical malpractice suits must be filed within a certain time limit, known as the statute of limitations. This is different from state to state. The injured patient must establish that the substandard care resulted in injury, and then he or she must prove how much monetary compensation he or her deserves.

Damages

You are entitled to compensation for any injuries that you've suffered as a result of medical negligence. Scaffidi & Associates can help you get fair and complete compensation for your losses.

The first step in a lawsuit is to file and serve a complaint or summons, as well as other documents on all defendants. The parties then begin discovery, a process in which documents and statements are disclosed under the oath. During discovery medical records and doctor's notes are usually requested.

In most states, you have to prove four things to be compensated for injuries caused by medical malpractice such as a duty due to the healthcare provider and a breach of that obligation; a causal connection between the breach and the injury suffered by the patient and damages resulting from the injury. If your attorney can prove all these elements in a medical malpractice claim, you'll have an impressive case.

In certain instances, courts can give punitive damages, which are designed to punish the offender and deter others from engaging in similar misconduct. This is not the norm however, especially in medical malpractice cases. The courts must be able to prove evidence of malice before they are able to give these extraordinary damages.