How to File a Medical Malpractice Case

A patient who discovers that a foreign object like surgical clamps, remain inside her body following gall bladder surgery may file a medical malpractice lawsuit. A successful claim must establish the legal elements of medical negligence: duty, deviance from this duty, direct cause and injury.

It is important for our clients to establish a direct connection between the breach of duty and the resulting injury that is known as proximate causation.

Cause of Injury

A claim for medical malpractice can be filed by the person who suffered the injury or a legal representative. This could be a spouse or adult child, parent, guardian or administrator of an estate belonging to a deceased patient depending on the specific circumstances. The plaintiff in a suit for medical negligence is the health professional. This could be a nurse, doctor or therapist, or any other health professional.

Expert testimony is typically required in malpractice cases. Medical experts are required to testify on whether or whether the health professional adhered to the standards of care for their specific area. They must also testify regarding the injury that was caused by the physician's actions or inactions.

Injuries resulting from malpractice and negligence can be extremely serious. For example, a mistake in the diagnosis of a health problem could have life-threatening effects. Other types of injuries could include performing surgery on the wrong body part or putting instruments inside the patient during surgery.

In order to prove a malpractice claim the patient has to prove four legal elements: a duty that the doctor owed them; a breach of the breach; a resulting injury; and damages. In some states, like New York, the law places a limit on the amount of money that can be awarded in an injury resulting from a malpractice claim.

Causation

The injury element is also known as the causation. It is one of most important aspects of a medical malpractice claim. To establish causation the plaintiff must prove that their injury was the result of the doctor's negligence. This is a difficult job due to a variety of reasons.

For instance, many injuries that are the subject of a medical malpractice lawsuit arise from long-term or ongoing illnesses that were present prior to treatment. The statute of limitations on medical malpractice (my review here) cases can be extended over a period of time and injuries can develop slowly.

In these instances it can be difficult to prove that a certain medical professional's violation of the standard of care caused the injury. However, the aggrieved patient may be able to use evidence gathered by the attorney, including medical malpractice attorneys records and expert testimony.

During the discovery process, which is part of the legal procedure for preparing for trial, your lawyer could request disclosure of expert testimony as well as other documents from lawyers of the defendants. The doctor who is representing the case will be required to take a deposition. This is a testimony that's given 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 necessary elements of their claim, which includes duty, breach, causation and injury.

Negligence

When a medical malpractice law firms negligence claim is filed, the plaintiff will have to convince the jury that it was more likely than not that the physician violated professional duties and that those breaches resulted in injuries. The lawyer representing the plaintiff must demonstrate this with evidence gathered through pre-trial discovery, which involves requesting disclosure of documents including medical records from all parties involved in the lawsuit. This process also includes swearing statements that are recorded and used at trial.

A doctor breached his or her professional obligation when he/she did something that a prudent doctor would not do in the same circumstances. It must be proved that the breach was the cause of the injury directly to the patient. This is referred to as causation or proximate causes. For instance the patient is admitted to the hospital for a hernia operation and is later told that he or the gall bladder removed instead. This is medical malpractice as the removal of the gall bladder did not benefit the patient.

Medical malpractice lawsuits must be brought within a legally prescribed period of time, referred to as the statute of limitations, that varies from state to state. The person who has suffered injury must prove that the care provided was substandard and caused injury and then he or she must prove how much monetary compensation he or she deserves.

Damages

You deserve to be compensated for any injuries that you've suffered as a result of medical negligence. At Scaffidi & Associates, we will assist you in receiving the full and fair compensation you deserve for your loss.

The first step in a lawsuit is to make a complaint and serve it, summons and other documents on all defendants. The parties then begin discovery, a procedure in which documents and statements are disclosed under an oath. Medical records and the doctor's notes are typically requested during discovery.

In most states, you must demonstrate four elements in order to be compensated for injuries incurred by medical malpractice that is a duty owed by the healthcare provider; a 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, then you've got a strong case for financial compensation in a medical malpractice claim.

In some instances the court can give punitive damages, which are intended to penalize the wrongdoer and deter others from committing the same offense. This is rare, however, in medical malpractice cases. The courts must have a clear evidence of malice before they may decide to award these extraordinary damages.