How to File a Medical Malpractice Case

If a patient discovers that an object foreign to her like surgical clamps, remain inside her body following gall bladder surgery may be able to file a lawsuit for medical malpractice. A successful lawsuit must prove the legal aspects of medical negligence: duty, deviance from this duty, direct cause and injury.

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

Cause of Injury

A medical malpractice claim can be filed by the injured patient or a person who is legally authorized to represent them. Depending on the circumstances, this may be the spouse of the patient or an adult child, parent, a guardian ad Litem or the executor or administrator of the estate of the patient who died. The defendant in a medical malpractice lawsuit is the health professional. This could be a licensed nurse, doctor or therapist.

Expert testimony is typically required in malpractice cases. Medical experts must determine if the medical professional did what was required of treatment in their specific area of expertise. They also have to testify to the damage caused by the actions or inactions of the doctor.

Accidents caused by negligence or malpractice can be severe. For instance, a wrong diagnosis of a health problem could cause life-threatening complications. Other types of injuries include operating on the incorrect 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 and a breach of that duty; an injury caused by the breach; and the resulting damages. In some states, such as New York, the law restricts the amount of money that could be awarded for a malpractice claim.

Causation

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

For instance, many injuries that are the cause of a medical negligence lawsuit arise from long-term or ongoing conditions that were in the process of being treated prior to. Often the statute of limitations for a medical malpractice claim is extended over a period of years and the injuries may develop slowly.

In these cases it is necessary to prove that a medical professional's breached the standard of care led to the injury is not easy. However, the aggrieved patient could be able to make use of evidence gathered by the attorney, such as medical documents and expert testimony.

During the discovery procedure as part of the legal process the preparation of a trial your lawyer can request the lawyers representing the defendants disclose expert testimony and other documents. The doctor defending the lawsuit is then required to testify in depositions, which are testimony under oath. Your lawyer is able to cross-examine doctor and challenge their conclusions. The jury will decide if the plaintiff has proven the facts of the case including breach of duty, breach of contract and causation.

Negligence

If a claim for medical malpractice is filed the plaintiff must to convince the jury that it was more likely than not that the physician did not perform his or her professional obligations and that those breached duties caused injury. The plaintiff's attorney has to 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. Depositions, in which statements are made under oath and recorded for trial, are also a part of this procedure.

A doctor has violated their professional duty when they did something that a reasonable prudent physician would not have done under the same circumstances. It must be proved that the breach resulted in injury directly to the patient. This is referred to as causation or proximate causes. For example when a patient is taken to the hospital for a procedure to treat a hernia and then has his or his gall bladder removed instead. This is medical negligence because the removal was not beneficial for the patient.

Medical malpractice lawsuits must be brought within a legally-defined period of time, referred to as the statute of limitations, which varies according to the state. The person who has suffered injury must prove that the substandard care caused injury and then he or she must demonstrate the amount of compensation he or she deserves.

Damages

If a medical error has caused you to suffer an injury, you have the right to be compensated. Scaffidi & Associates can help you receive a fair and complete compensation for your losses.

The first step is filing and serving a summons and complaint to all defendants named in the lawsuit. The parties then participate in discovery, a procedure in which documents and statements are revealed under an oath. During discovery, medical records and doctor's notes are typically requested.

In most states, you must demonstrate four elements in order to be compensated for any injuries caused by medical malpractice law firms malpractice such as a duty due to the healthcare provider in breach of that duty; a causal link between the breach and the patient's injury; and damages that flow from the injury. If your attorney can establish all of these elements, you will have an excellent case for financial recovery in a medical malpractice claim.

In some instances the court can award punitive damages, which are intended to penalize the perpetrator and discourage others from engaging in the same conduct. This is not the norm, however, in medical malpractice cases. The courts must have very clear evidence of malice before they may make these extraordinary awards.