How to File a Medical Malpractice Case

A patient who finds that an object that is foreign like surgical clamps, remain inside her body after gall bladder surgery may file a medical malpractice lawsuit. A successful lawsuit must prove the legal aspects of medical negligence: duty, deviance from this duty, direct cause, and injury.

It is crucial for our clients to establish a direct causal connection between the breach of duty and the injury called proximate causation.

Cause of Injury

A medical malpractice claim may be filed either by the injured person or an attorney. Based on the specific circumstances, this may be the spouse of the patient or an adult child, parent, guardian ad-litem or executor or administrator of the estate of the deceased patient. In a medical malpractice case the defendant is the health care provider. This could be a nurse, doctor, therapist or any other licensed health professional.

The majority of cases involving malpractice involve many expert witnesses. Medical experts are required to determine if the medical professional performed his duties in accordance with the standard of care in his or her particular field of expertise. They must also testify to the harm caused by the actions or inactions of the doctor.

Injuries resulting from malpractice and negligence can be extremely serious. For example, a misdiagnosis of a health issue could cause life-threatening complications. Other types of injuries include operating on the wrong part or putting instruments inside the patient during surgery.

In order to establish a malpractice case, the patient must prove four legal elements: a duty the physician owed to them; a breach in this duty; a resultant injury and damages. In certain states like New York the law limits the amount of money awarded in a malpractice case.

Causation

The injury element is called the causation. It is one of most important aspects in a medical malpractice claim. To establish causation the plaintiff must prove that the injury was caused by the doctor's negligence. This is a challenging job due to various reasons.

For medical malpractice lawsuit example, many injuries that are the subject of a medical-malpractice lawsuit are the result of long-term or ongoing conditions that were already present prior to the time of treatment. Often the statute of limitation for a medical malpractice lawsuit extends over a variety of years and the injuries may develop slowly.

In these instances the proof that a medical professional's failure to adhere to the standard of care and led to the injury is difficult. The attorney may have gathered evidence, like medical records and expert testimony, that the injured patient may use.

During the discovery process, which is part of the legal process for preparing for trial, your lawyer may seek disclosure of expert testimony and other documents from the lawyers of the defendants. The doctor defending the lawsuit will be required to testify in depositions, which are testimony given under the oath. Your lawyer can challenge doctor's findings and cross-examine them. The jury will decide then if the plaintiff has proved the essential elements of their case such as the duty of care, breach, causation and injury.

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 committed a breach of professional duties and that the violations caused injuries. The plaintiff's attorney must be able to prove this by utilizing evidence obtained during discovery. This involves seeking documents, such as medical records and other records from all parties in a lawsuit. This also includes sworn declarations that are recorded and used at trial.

A doctor was in breach of his or her professional obligations if he or she did something that a reasonably prudent physician would not do in the same circumstances. However, it must be proven that the breach directly caused the injury to the patient. This is referred to as causation or causal proximate causes. A patient might go to the hospital to have a hernia fixed, and instead, have 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 filed within the legal time frame, also known as the statute of limitations. This differs from state-to-state. The injured patient must establish that the substandard care caused injury and then demonstrate the amount of compensation he or she deserves.

Damages

If a medical error has caused you to suffer a traumatic injury, you deserve to be made whole. Scaffidi & Associates can help you receive a fair and complete compensation for your losses.

The first step is filing and serving the complaint and summons to all defendants named in the lawsuit. The parties then participate in discovery, in which documents and declarations are made public under the oath. Medical records and the doctor's notes are typically requested during discovery.

In most states, in order to get compensation for injuries caused through malpractice, you need to prove four things including a duty of good faith owed by the healthcare provider and a breach of that duty; a causal link between the breach and injury and damages that result from the injury. If your lawyer can prove all of these elements, you will have an extremely strong case for financial compensation in a medical malpractice claim.

In some instances, the court may award punitive damage which is intended to penalize a wrongdoer and discourage others from committing similar misconduct. This is not the norm however, especially in medical malpractice cases. The courts must have very clear evidence of malice before they are able to make these extraordinary awards.