How to File a Medical Malpractice Case

A patient who discovers that a foreign object, such as surgical clamps, remain inside her body following gall bladder surgery can file a medical malpractice lawsuit. A successful claim must demonstrate the elements of medical negligence: duty, deviation from the duty, and direct reason.

It is vital for our clients to establish a direct link between the breach of duty and the damage called proximate causation.

The reason for injury

A medical malpractice claim may be filed either by the person who was injured or an attorney. This could be the spouse, adult child guardian, parent or administrator of the estate of a deceased person depending on the circumstances. In a case involving medical malpractice, the defendant is the health care provider. This could be a nurse, doctor or therapist, or any other licensed health care professional.

Expert testimony is often required in cases of malpractice. Medical experts must testify as to whether or not the health care provider was in compliance with the standard of care for their specific area. They must also testify to the harm resulting from the actions or inactions of a doctor.

Injuries that result from malpractice or negligence can be very serious. For example, a mistake in the diagnosis of a medical condition could have life-threatening consequences. Other kinds of injuries include operating on the incorrect body part or leaving surgical instruments inside the patient.

To establish a malpractice claim 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 some states such as New York the law limits the amount of money that can be awarded for a malpractice case.

Causation

The injury element, also referred to as causation, is one of the most crucial elements in a medical malpractice lawyer malpractice case. To establish causation, the plaintiff must prove that the injury was caused by the doctor's negligence. This can be a difficult task due to a variety of reasons.

Many of the injuries that form the basis for a medical negligence lawsuit result from long-term illnesses or issues that existed before treatment began. Often the statute of limitations for a medical malpractice lawsuit is extended over a period of years, and injuries can develop gradually.

In these instances it is often difficult to prove that a particular medical professional's breach of the standard of care caused the injury. The attorney may have collected evidence, such as expert testimony and medical records that the injured person can use.

In the discovery process that is part of the legal process preparing for a trial, your lawyer can request the lawyers representing the defendants disclose expert testimony and other documents. The doctor defending the lawsuit will be asked to testify during depositions, which are testimony that is under the oath. Your lawyer may challenge the doctor's findings and cross-examine them. The jury will then decide if the plaintiff has proved the essential elements of their case such as breach of duty, causation, breach of duty and injury.

Negligence

The plaintiff must convince the jury, when filing a claim for medical malpractice in court, that it is more than likely that the physician violated his or her obligations as a physician and that those actions led to injury. The plaintiff's lawyer has to demonstrate this with evidence gathered through pretrial discovery, which includes requesting disclosure of documents including medical records from all parties who are involved in the lawsuit. This process also involves swearing statements that are recorded and used in trial.

A doctor has violated their professional obligation by doing something that a reasonable and prudent doctor would not have done in similar circumstances. However, it must be proven that the breach directly caused injury to the patient. This is known as causation or proximate cause. A patient could visit a hospital to repair a hernia, however, they end up having their gall bladder removed. This is medical malpractice since the removal of the gall bladder was not beneficial to the patient.

Medical malpractice lawsuits must be brought within a legally regulated time frame, known as the statute of limitations which is different for each state. The person who has suffered injury must prove that the care provided was substandard and caused injury, and then show how much compensation he or she deserves.

Damages

You are entitled to compensation for any injuries you have suffered due to medical negligence. At Scaffidi & Associates, we will assist you in receiving the full and fair 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 then participate in discovery, in which documents and statements are made public under the oath. Medical records and notes of the doctor are usually requested during discovery.

In most states, you need to prove four things in order to be compensated for the injuries caused by medical malpractice that is a duty owed by the healthcare provider; a breach of that duty; a causal relationship between the breach and the patient's injury and the damages that result from the injury. If your lawyer can prove all of these elements in a medical malpractice claim, you'll have a convincing case.

In some cases courts may decide to award punitive damages. These are intended to penalize the perpetrator and discourage others from engaging in similar conduct. It is not common, however, in medical malpractice cases. The courts must have very clear evidence of malice before they can award these extraordinary damages.