How to File a Medical Malpractice Case

A patient who finds an object foreign to her body, such as surgical clamps inside her body after gall bladder surgery is able to file a lawsuit for medical negligence. A successful claim must establish the legal elements of medical negligence: duty, deviance from this obligation, direct cause and injury.

Our clients must establish a direct connection between the breach of duty, and the injury. This is known as the proximate reason.

The reason for injury

A claim for medical malpractice can be filed either by the person who suffered the injury or a legal representative. 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 suit for medical negligence is the health care provider. This could be a licensed nurse, doctor or therapist.

The majority of cases involving malpractice involve an abundance of expert testimony. Medical experts must provide evidence to prove that the healthcare provider did what was required of treatment in their specific area of expertise. They also have to testify to the harm caused by the actions or inactions of the doctor.

The consequences of negligence and mistakes can be catastrophic. A misdiagnosis can have serious consequences, like an illness that could be life-threatening. Other types of injuries include operating on the incorrect body part or putting surgical instruments in the patient.

The patient must establish four legal elements of a malpractice lawsuit: a duty owed to the patient by the physician; a breach of this obligation; a harm caused by the breach and resulting damages. In certain states, such as New York the law limits the amount of money awarded for a malpractice claim.

Causation

The injury element, also referred to as causation, is one of the most crucial elements in a medical malpractice case. To prove causation, a plaintiff must prove that they suffered their injury on the basis of probabilities due to of the negligence of a physician. This can be a difficult task due to a variety of reasons.

For instance, many injuries that are the basis of a medical malpractice lawsuit stem from long-term or ongoing conditions that were present prior to the time of treatment. Often the statute of limitation for a medical malpractice claim extends over a variety of years, and the injuries may develop slowly.

In these situations, it is difficult to prove that one particular medical professional's breach of standard of care caused the injury. However, the patient who is afflicted may be able to use the evidence gathered by the attorney, including medical malpractice attorney records and expert testimony.

During the discovery procedure which is an element of the legal process for preparing for a trial, your attorney can request that the defendants' lawyers disclose expert testimony and other documents. The doctor who is defending the case will be required to appear in deposition. This is a declaration that is given under the oath. Your lawyer can challenge the doctor's findings and cross-examine them. The jury will then decide whether the plaintiff has established the necessary elements of their claim, which includes duty, breach, causation and injury.

Negligence

If a medical malpractice lawsuit is filed the plaintiff has to convince the jury that it was more likely than not that the doctor breached his or her professional obligations and that those violations caused injury. The lawyer representing the plaintiff must demonstrate this by presenting evidence through pretrial discovery, which involves the disclosure of documents, including medical records from all parties involved in the lawsuit. This process also involves sworn declarations that are recorded and used at trial.

A doctor was in breach of his or her professional duty in the event that he or her did something that a prudent doctor would not do under the same circumstances. However it must be proven that the breach directly caused injury to the patient. This is referred to as causation or causal proximate causes. For example when a patient is taken to the hospital for a hernia operation and is later told that he or the gall bladder removed instead. This is medical negligence since the procedure 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 victim must show that the inadequate treatment caused injury, and they must show what compensation they deserve.

Damages

If a medical error has caused you to suffer a traumatic injury, you should be made whole. Scaffidi & Associates can help you receive fair and full compensation for your losses.

The first step in a lawsuit is to make a complaint and serve it along with summons and other papers on all defendants. The parties then engage in discovery. It is a process where documents and statements are presented under oath. During discovery medical records and notes from a doctor are typically requested.

In the majority of states, you need to demonstrate four elements in order to be compensated for injuries caused by medical malpractice such as a duty due to 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 attorney can establish all of these elements, then you've got an extremely strong case for financial recovery in a medical negligence claim.

In some instances, a court may make punitive damages available, which are intended to penalize the perpetrator and discourage others from engaging in similar conduct. However, this is rare in medical malpractice cases, because the courts require clear evidence of malice to give these extraordinary awards.