How to File a Medical Malpractice Case

A patient who discovers that an object foreign to her, such as surgical clamps, remains in her body following gall bladder surgery could be able to file a lawsuit for medical malpractice. A successful claim has to prove the elements of medical negligence: duty, deviation from this duty and direct reason.

It is essential for our clients to establish a direct causal connection between the breach of duty and the damage which is referred to as proximate cause.

The reason for injury

A medical malpractice case can be filed by the injured patient or a person legally designated to represent them. Depending on the circumstances, this may be the spouse of the patient, an adult child or parent, a guardian ad-litem or executor or administrator of the estate of the patient who died. In a case of medical malpractice the defendant is the health care provider. This could be a doctor, nurse or therapist, or any other licensed health professional.

Expert testimony is typically required in malpractice cases. Medical experts must testify as to whether or whether the healthcare provider was in compliance with the standard of care for their specific area. They must also testify regarding the harm caused by the doctor's actions or inactions.

The consequences of malpractice and negligence can be quite severe. A misdiagnosis could have grave consequences, including life-threatening conditions. Other kinds of injuries include operating on the wrong body part or putting surgical instruments in the patient.

The patient must prove four legal elements of a malpractice lawsuit which include a duty to the patient by the physician; a breach of this obligation; an injury resulting by the breach; and resulting damages. In certain states, such as New York the law limits the amount of money awarded in a malpractice case.

Causation

The injury element, also known as causation is one of the most important aspects of a medical malpractice attorneys malpractice case. To prove causation, a plaintiff must demonstrate that they suffered an injury on the balance of probabilities as a result of the negligence of the doctor. This is a challenging job due to various reasons.

For instance, a lot of injuries that are the subject of a medical malpractice lawsuit stem from long-term or ongoing ailments that were present prior to treatment. The time-limit for a medical malpractice case could be extended for a number of years and the development of injuries can happen slowly.

In these instances the proof that a medical professional's breached the standard of care and led to the injury is not easy. The attorney could have collected evidence, like expert testimony and medical records, that the injured patient could use.

During the discovery process, which is a part of the legal procedure for preparing for trial, your lawyer may seek disclosure of expert testimony and other evidence from lawyers representing the defendants. The doctor defending the lawsuit will then be asked to give evidence during a deposition, which is testimony given under the oath. Your lawyer can cross-examine the doctor and challenge the doctor's findings. The jury will then decide whether the plaintiff has established the essential elements of their claim, which includes breach of duty, causation, breach of duty and injury.

Negligence

If a claim for medical malpractice is filed in court, the plaintiff must to convince the jury that it was more likely than not that the doctor breached his or her professional duties and that those breached duties caused injuries. The plaintiff's lawyer has to show this through evidence gathered through pre-trial discovery, which involves asking for disclosure of documents such as medical records from all parties involved in the lawsuit. Depositions, wherein statements are made under oath and recorded for use in trial, are also part of this procedure.

A doctor has violated their professional obligation by doing something that an ordinary prudent doctor would not have done in similar circumstances. It must be proven that the breach was the cause of the injury directly to the patient. This is referred to as causation or the proximate cause. Patients may visit a hospital to have a hernia repaired, however, they end up having their gall bladder removed. This is medical negligence as the procedure did not benefit the patient.

Medical malpractice lawsuits must be filed within a legally defined period of time, referred to as the statute of limitations which varies according to the state. The patient who is injured must prove that the negligent care resulted in injury, Medical malpractice lawsuits and then demonstrate the amount of compensation he or she is entitled to.

Damages

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

The first step in a lawsuit is to file and serve a complaint as well as summons and other documents on all defendants. The parties engage in discovery. This is a process where documents and statements are revealed under the oath. During discovery medical records and doctor's notes will typically be sought.

In many states, to get compensation for injuries caused by malpractice, you have to prove four things that include a duty of care due to the healthcare provider, a breach of this duty; a causal link between the breach and injury and damages resultant from the injury. If your lawyer can prove all of these elements, you have an excellent case for financial compensation in a medical negligence claim.

In certain instances the court could award punitive damage which is intended to punish the perpetrator and discourage others from committing similar acts. However, this is rare in medical malpractice cases because the courts require clear evidence of malice to make these extraordinary awards.