How to File a Medical Malpractice Case

A patient who finds an object foreign to her body, such as surgical clamps inside her body following gall bladder surgery is able to file a lawsuit for medical malpractice. A successful claim must prove the elements of medical malpractice: duty, deviance from the norm and direct reason.

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

Causes of Injury

A medical negligence case may be filed by the person who has been injured or a legal person to represent them. Depending on the circumstances, this may be the spouse of the patient or an adult child, parent, guardian ad litem or the administrator or executor of the estate of the patient who died. The plaintiff in a medical malpractice lawsuit is the health care provider. It could be a licensed doctor, nurse or therapist.

Expert testimony is usually required in malpractice cases. Medical experts are required to testify on whether or whether the healthcare provider adhered to the standards of care in their specific field. They must also testify about the harm caused by the doctor's actions or inactions.

Accidents caused by negligence or mistakes can be devastating. For instance, a wrong diagnosis of a health condition can have life-threatening consequences. Other types of injuries can include operating on the wrong body part or leaving surgical instruments inside the patient.

To establish a malpractice claim the patient must prove four legal elements: a duty the doctor owed to them; a breach of this duty, medical malpractice lawsuits resulting injury and damages. In some states such as New York the law limits the amount of money awarded in a case of malpractice.

Causation

The element of injury is called the causation. It is one of the most important elements in a medical malpractice claim. To prove causation the plaintiff must demonstrate that they suffered their injury on the balance of probabilities due to of the negligence of a physician. This is a challenging job due to various reasons.

Many of the injuries that are the basis for a medical negligence lawsuit stem from chronic issues that existed before treatment began. The statute of limitations on a medical malpractice case could be extended over a period of time and the development of injuries can happen slowly.

In these cases the proof that a medical professional's failure to adhere to the standard of care led to the injury is a challenge. However, the person who was harmed may be able to use evidence collected by the attorney, including medical documents and expert testimony.

During the discovery process, which is a component of the legal procedure for preparing for trial, your lawyer will ask for the disclosure of expert testimony and other documents from the lawyers representing the defendants. The doctor who is defending the case will be required to take a deposition. This is a testimonies which is under the oath. Your lawyer may challenge the doctor's findings and cross-examine them. The jury will decide whether the plaintiff has established that the allegations of the case are true which include breach of duty, breach and causation.

Negligence

The plaintiff must convince the jury when bringing a claim for medical malpractice that it is more likely that the doctor acted in violation of the obligations of physician and that the actions led to injury. The plaintiff's lawyer must demonstrate this using evidence collected during discovery. This includes requesting documents, including medical records and other records from all parties in a lawsuit. This also includes sworn statements that are recorded and used at trial.

A doctor violated his or her professional duty if he or she did something that a prudent physician would not do in the same circumstances. It must be proved that the breach was the cause of the injury directly to the patient. This is known as causation or causal proximate causes. Patients may visit a hospital to repair a hernia, but instead end up having their gall bladder removed. This is medical malpractice as the removal of the gall bladder was not beneficial to the patient.

Medical malpractice lawsuits must be brought within a legally regulated period of time, referred to as the statute of limitations, which varies according to the state. The patient who was injured must prove that the negligent treatment resulted in injury, and after that they must establish what compensation they are entitled to.

Damages

You deserve to be compensated for any injuries you have suffered as a result of medical negligence. At Scaffidi & Associates, we can assist you to receive full and fair compensation for your loss.

The first step in a lawsuit is to file and serve a complaint, summons and other documents on all defendants. The parties engage in discovery. This is a process where documents and statements are revealed under the oath. During discovery, medical records and doctor's notes are typically requested.

In most states, you have to establish four elements to be compensated for injuries incurred by medical malpractice: a duty owed by the healthcare provider and a breach of the obligation; a causal connection between the breach and the patient's injury; and damages that flow from the injury. If your attorney can prove all of these elements of a medical negligence claim, you will have a convincing case.

In certain cases, a court may decide to award punitive damages. These are intended to punish the culprit and deter others from committing the same offense. It is not common, however, in medical malpractice cases. The courts must have clear evidence of malice before they are able to award these extraordinary damages.