Medical Malpractice Lawsuits

Attorneys have a fiduciary responsibilities to their clients and they must behave with a degree of diligence, skill and care. Attorneys make mistakes just like any other professional.

Every mistake made by an attorney constitutes negligence. To prove negligence in a legal sense the person who was hurt must prove duty, breach of duty, causation, and damage. Let's review each of these elements.

Duty

Medical professionals and doctors swear to use their training and experience to help patients and not to cause further harm. The duty of care is the basis for the right of patients to receive compensation for injuries caused by medical malpractice. Your attorney can determine if the actions of your doctor violated the duty of care and if those breaches resulted in injury or illness.

To prove a duty of care, your lawyer has to prove that a medical professional had an legal relationship with you, in which they have a fiduciary obligation to perform their duties with an acceptable level of skill and care. This can be proved by eyewitness testimony of witnesses, doctor-patient records, and expert testimony of doctors with similar educational, experience and training.

Your lawyer must also show that the medical professional violated their duty of care by not living up to the accepted standards of practice in their field. This is commonly called negligence. Your lawyer will assess what the defendant did with what a reasonable person would do in a similar situation.

Finally, your lawyer must demonstrate that the defendant's breach of duty directly led to your loss or injury. This is known as causation, and your attorney will use evidence like your doctor-patient documents, witness statements and expert testimony to demonstrate that the defendant's failure to uphold the standard of care in your case was the direct cause of your loss or injury.

Breach

A doctor has a duty of care for his patients that corresponds to professional medical standards. If a doctor fails adhere to these standards and fails to do so causes injury, then negligence and medical malpractice might occur. Typically the testimony of medical professionals who have similar training, expertise or certifications will assist in determining what the minimum standard of treatment should be in a particular circumstance. Federal and state laws, along with institute policies, help define what doctors are required to do for certain types of patients.

To prevail in a malpractice lawsuit, it must be shown that the doctor violated his or his duty of care and that the breach was a direct cause of injury. This is referred to in legal terms as the causation element, and it is essential that it is established. For example an injured arm requires an xray, the doctor should properly place the arm and put it in a cast for proper healing. If the doctor was unable to do this and the patient was left with a permanent loss of use of that arm, then malpractice may have occurred.

Causation

Lawyer malpractice claims are founded on the evidence that the attorney made mistakes that led to financial losses for the client. For example when a lawyer does not file a lawsuit within the statute of limitations, leading to the case being lost forever and the victim could bring legal malpractice lawsuits.

It is important to recognize that not all errors made by lawyers are a sign of illegal. Mistakes in strategy and planning are not generally considered to be malpractice attorneys are given plenty of discretion to make judgment calls as long as they are reasonable.

The law also allows lawyers an enormous amount of discretion to not conduct discovery on behalf of a client as long view malpractice lawyer as the error was not unreasonable or a result of negligence. Inability to find important information or documents, such as medical or witness statements can be a case of legal malpractice. Other instances of malpractice include inability to include certain defendants or claims such as omitting to file a survival count in a wrongful death lawsuit or the frequent and extended inability to contact the client.

It is also important to note the fact that the plaintiff has to show that if it wasn't the lawyer's negligence, they would have prevailed. The plaintiff's claim for malpractice will be rejected when it isn't proven. This requirement makes the process of bringing legal malpractice lawsuits difficult. It is important to employ an experienced attorney.

Damages

To prevail in a legal malpractice lawsuit, the plaintiff must prove actual financial losses caused by an attorney's actions. This can be proven in a lawsuit by utilizing evidence such as expert testimony, correspondence between client and attorney along with billing records and other records. In addition the plaintiff has to prove that a reasonable lawyer would have prevented the harm caused by the negligence of the attorney. This is known as proximate cause.

The definition of malpractice can be found in a variety of ways. The most frequent mistakes are: failing to meet the deadline or statute of limitations; failing to perform the necessary conflict checks on an instance; applying the law in a way that is not appropriate to the client's circumstances; and breaching an obligation of fiduciary (i.e. commingling trust account funds with attorney's personal accounts) and mishandling the case, and not communicating with the client.

Medical malpractice lawsuits typically involve claims for compensatory damages. These compensations are intended to compensate the victim for out-of pocket expenses and expenses such as medical and hospitals bills, equipment costs to aid in recovery and lost wages. Victims are also able to claim non-economic damages, such as pain and discomfort or loss of enjoyment in their lives, and emotional suffering.

In many legal malpractice cases there are lawsuits for punitive as well as compensatory damages. The former compensates the victim for losses caused by the attorney's negligence, while the latter is designed to discourage future misconduct by the defendant.