How to File a medical malpractice law firm Malpractice Case

A patient who discovers an object foreign to her body, such as surgical clamps inside her body following gall bladder surgery may sue for medical negligence. A successful claim has to prove the elements of medical negligence: duty, deviation from this duty and direct reason.

It is important for our clients to establish a direct causal connection between the breach of duty and the resulting injury which is referred to as proximate cause.

Causes of Injury

A medical malpractice claim can be filed by the injured patient or by a person legally appointed to act on their behalf. Based on the specific circumstances, it could be the spouse of the patient or an adult child parent, a guardian ad Litem or the administrator or executor of the estate of the patient who died. The defendant in a medical malpractice suit is the health professional. This could be a nurse, doctor or therapist, or any other licensed health professional.

Expert testimony is often required in cases of malpractice. Medical experts are required to testify whether or not the health care provider followed the standard of care in their specific field. They must also testify regarding the injury that was caused by the doctor's actions or inactions.

Injuries that result from malpractice or negligence can be very serious. A misdiagnosis can have serious consequences, like a life-threatening condition. Other types of injuries can involve operating on the wrong body part or leaving surgical instruments inside the patient.

The patient must prove four legal elements of a malpractice lawsuit the duty owed to the patient by the physician or a breach of the duty; injury caused by the breach and the consequential damages. In certain states, like New York, the law sets a limit on the amount of money that can be awarded for a malpractice claim.

Causation

The injury element, also referred to as causation, is one the most important elements in a medical malpractice case. To establish causation, the plaintiff must show that they suffered their injury based on a balance of probabilities as a result of the negligence of a physician. This is a difficult task due to a variety of reasons.

For instance, a lot of injuries that are the cause of a medical negligence lawsuit arise from long-term or ongoing illnesses that were present prior to treatment. Often the statute of limitations for a claim involving medical malpractice extends out over a number of years, and the injuries can develop gradually.

In these cases it is necessary to prove that a medical professional's breach of the standard of care and led to the injury is difficult. The attorney may have gathered evidence, including medical records and expert testimony that the patient who was injured can use.

During the discovery process, which is part of the legal process for getting ready for trial, your lawyer may request disclosure of expert testimony as well as other documents from defendants' attorneys. The doctor who is defending the case will be required to appear in deposition. This is a testimony that is made under the oath. Your lawyer will be able to challenge the doctor's findings and cross-examine them. The jury will decide whether the plaintiff has established the elements of the case, including duty, breach and causation.

Negligence

When a medical negligence claim is filed, the plaintiff will have to convince the jury that it was more likely than not that the doctor committed a breach of professional obligations and that those breached duties caused harm. The lawyer for the plaintiff must show this through evidence gathered through pre-trial discovery, which involves seeking disclosure of documents, which includes medical records from all parties involved in the lawsuit. This also includes the recording of sworn statements and used in trial.

A doctor breached the professional duties of a doctor when he/she did something that a prudent physician would not do under similar circumstances. It must be established that the breach was the cause of the injury directly to the patient. This is called causation or the proximate cause. For instance when a patient is taken to the hospital for a hernia operation and ends up having his or the gall bladder removed instead. This is medical negligence because the procedure was not beneficial to the patient.

Medical malpractice lawsuits must be filed within a specific legal period, referred to as the statute of limitations. This is different from state to state. The patient who was injured must prove that the substandard treatment caused injury, then they must establish what compensation they are entitled to.

Damages

If medical negligence has led you to sustain an injury, you have the right to be compensated. At Scaffidi & Associates, we can assist you to receive an adequate and fair amount of compensation for your losses.

The first step in a lawsuit is to make a complaint and serve it, summons and other documents on all defendants. The parties participate in discovery. This is which involves the disclosure of documents and statements disclosed under the oath. During discovery, medical malpractice lawyers records and doctor's notes are usually requested.

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

In some instances the court can decide to award punitive damages. These are intended to penalize the wrongdoer and deter others from engaging in similar misconduct. It is not common however, especially in medical malpractice cases. The courts must have clear evidence of malice before they can decide to award these extraordinary damages.