How to File a Medical Malpractice Case

A patient who finds that a foreign object like surgical clamps, is still inside her body after gall bladder surgery may file a medical malpractice lawsuit. A successful claim must prove the elements of medical negligence: duty, deviation from this duty and direct reason.

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

Cause of Injury

A medical malpractice claim can be filed either by the injured person or an attorney. Depending on the circumstances it could be the spouse of the patient, an adult child or parent, guardian ad litem, or the executor or administrator of the estate of the deceased patient. The defendant in a medical malpractice suit is the health care provider. This could be a doctor, nurse or therapist, or any other health care professional.

Malpractice cases usually involve the testimony of experts. Medical experts must be able to prove whether or not the health care provider was in compliance with the standard of care in their specific field. They must also testify regarding the injury caused by the doctor's actions or inactions.

The consequences of malpractice and negligence can be extremely serious. A misdiagnosis can have serious consequences, such as a life-threatening condition. Other types of injuries be caused by operating on an incorrect body part or leaving surgical instruments inside the patient.

To establish a malpractice case the patient has to prove four legal elements: a duty that the doctor owed to them; a breach of this duty, resulting injury and damages. In some states, such as New York, the law sets a limit on the amount that can be awarded for an action for malpractice.

Causation

The injury element, also referred to as causation, is one of the most important elements in a medical malpractice case. To prove causation, the plaintiff must prove that the injury was the result of the doctor's negligence. This can be a challenging job due to a variety of reasons.

For Medical Malpractice Lawyer example, many injuries that are the subject of a medical malpractice lawsuit stem from long-term, or ongoing ailments that were present prior to the time of treatment. Often, the statute of limitations for a medical malpractice claim is extended over a period of years, and injuries can develop gradually.

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

During the discovery process, which is part of the legal procedure for preparing for trial, your lawyer will request the disclosure of expert testimony and other evidence from lawyers of the defendants. The doctor who is defending the lawsuit will then be required to testify in deposition, which is testimony that is under the oath. Your lawyer can challenge the doctor's findings and cross-examine them. The jury will then decide whether the plaintiff has proved the necessary elements of their claim, which includes duty, breach, causation and injury.

Negligence

The plaintiff must convince jurors, in a case of medical malpractice that it is more than likely that the doctor violated his or her responsibilities as a physician and that those breaches resulted in injury. The plaintiff's lawyer has to demonstrate this by presenting evidence through pretrial discovery, which entails requesting disclosure of documents including medical records from all parties involved in the lawsuit. The process also involves the recording of sworn statements and used in trial.

A doctor was in breach of the professional duties of a doctor Medical Malpractice lawyer when he or she did something that a reasonable prudent doctor would not do under similar circumstances. However it must be established that the breach directly caused the injury to the patient. This is known as causation or proximate cause. A patient may go to the hospital in order to repair a hernia, but end up having their gall bladder removed. This is medical negligence because the procedure was not beneficial to the patient.

Medical malpractice lawsuits must be brought within a legally-defined time frame, known as the statute of limitations which varies according to the state. The victim must show that the inadequate 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 that you've suffered due to medical negligence. Scaffidi & Associates can help you receive a fair and complete compensation for your losses.

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

In the majority of states, to get compensation for injuries caused by malpractice, you need to prove four things including a duty of good faith due to the healthcare provider, a breach of this duty; a causal link between the breach and injury and damages resulting from the injury. If your attorney can prove all these aspects of a medical malpractice lawyers negligence claim, you will have a convincing case.

In some cases the court could award punitive damage which is intended to punish the perpetrator and discourage others from committing similar misconduct. However, this is not the norm in medical malpractice cases because the courts require clear evidence of malice to award these awe-inspiring awards.