How to File a Medical Malpractice Case

A patient who finds that an object that is foreign, such as surgical clamps, is still inside her body following gall bladder surgery may file a medical malpractice lawsuit. A successful claim must demonstrate the elements of medical malpractice: duty, deviance from this duty and the direct cause.

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

Causes of Injury

A medical malpractice claim may be filed by the victim or a legal representative. Based 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. The plaintiff in a lawsuit for medical malpractice is the health professional. This could be an accredited doctor, nurse or therapist.

Malpractice cases usually require many expert witnesses. Medical experts must be able to prove whether or the medical professional was in compliance with the standard of care for their particular field. They must also testify as to the damage caused by the doctor's actions or inactions.

Injuries that result from malpractice or negligence can be quite severe. For example, a mistake in the diagnosis of a health problem could result in life-threatening consequences. Other kinds of injuries include operating on the wrong body part or putting surgical instruments in the patient.

The patient must establish four legal elements of a malpractice lawsuit that include a duty owed to the patient by the physician or a breach of the duty; injury caused by the breach and the resulting damages. In certain states like New York the law limits the amount of money that can be awarded for a malpractice case.

Causation

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

For example, many injuries that are the subject of a medical malpractice lawsuit stem from long-term, or ongoing conditions that were present before treatment began. The statute of limitations on a medical malpractice lawsuit can be extended over a period of time and injuries can develop slowly.

In these cases the proof that a medical professional's breached the standard of care that led to the injury is difficult. However, the person who was harmed could be able to use the evidence gathered by the attorney, such as medical documents and expert testimony.

During the discovery process, which is a part of the legal process preparation for a trial, your lawyer may request that the lawyers representing the defendants disclose expert testimony and other documents. The doctor who is defending the lawsuit will be required to testify in deposition, which is testimony that is under the oath. Your lawyer may challenge the doctor's findings and cross-examine them. The jury will then decide whether the plaintiff has proved the necessary elements of their case, including the duty of care, breach, causation 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 physician committed a breach of professional duties and those breaches caused harm. The plaintiff's attorney has to demonstrate this using evidence collected during discovery. This includes the request of documents, including medical records as well as other documents from all parties in the lawsuit. This process also involves sworn declarations that are recorded and used in trial.

A doctor violated the professional duties of a doctor in the event that he or her did something that a prudent doctor would not do in 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. A patient could visit the hospital to repair a hernia but instead end up having their gall bladder removed. This is medical negligence as the procedure did not benefit the patient.

Medical malpractice suits must be filed within a specific legal time frame, also known as the statute of limitations. This differs from state-to-state. The patient who is injured must prove that the substandard care resulted in injury, and then he or lawsuit she must prove the amount of financial compensation he or her deserves.

Damages

You deserve to be compensated for any injuries you have suffered due to medical negligence. At Scaffidi & Associates, we can assist you in obtaining full and fair compensation for your loss.

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. It is a process which involves the disclosure of documents and statements disclosed 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 these elements in a medical negligence claim, you will have an enviable case.

In certain cases, courts can award punitive damages, which are designed to punish the culprit and deter others from engaging in similar misconduct. It is not common, however, in medical malpractice cases. The courts must have a clear evidence of malice before they can award these extraordinary damages.