How to File a Medical Malpractice Case

A patient who discovers that a foreign object like surgical clamps, remain inside her body after gall bladder surgery could be able to file a lawsuit for medical malpractice. A successful lawsuit must prove the legal elements of medical negligence: duty, deviation from this duty, direct causes, and injury.

Our clients must establish a direct connection between the breach of duty and the injury. This is referred to as proximate cause.

Cause of Injury

A claim for medical malpractice can be filed either by the victim or a legal representative. Depending on the circumstances, attorneys this could be a spouse of the patient, an adult child or parent, guardian ad litem or the administrator or executor of the estate of the deceased patient. The plaintiff in a suit for medical negligence is the health professional. This could be a nurse, doctor, therapist or any other health professional.

Expert testimony is typically required in malpractice cases. Medical experts are required to testify on whether or the medical malpractice law firms professional adhered to the standards of treatment for their particular field. They must also testify to the harm resulting from the actions or inactions of a doctor.

The consequences of malpractice and negligence can be extremely serious. For instance, a wrong diagnosis of a medical condition could have life-threatening consequences. Other types of injuries can include operating on the wrong body part or leaving surgical instruments inside the patient.

The patient must establish four legal elements in a malpractice claim: a duty owed to the patient by the physician and a breach of that obligation; an injury resulting by the breach; and the consequential damages. In certain states, such as New York, the law places a limit on the amount that can be awarded in the malpractice claim.

Causation

The injury element, also known as causation, is one of the most important elements of medical malpractice cases. To establish causation the plaintiff must prove that their injury was caused by a physician's negligence. This can be a challenging task for a number of reasons.

Many of the injuries that form the basis for a medical negligence suit result from chronic conditions that existed prior to when treatment started. Often, the statute of limitations for a medical malpractice lawsuit is extended over a period of years and the injuries may develop slowly.

In these cases, it is difficult to prove that a particular medical professional's violation of the standard of care led to the injury. However, the person who was harmed could be able to make use of the evidence gathered by the attorney, like medical records and expert testimony.

During the discovery process, which is a component of the legal process for preparation for attorneys trial, your lawyer could ask for the disclosure of expert testimony as well as other documents from defendants' attorneys. The doctor who is representing the case will be asked to appear in deposition. This is a testimonies that is made under oath. Your lawyer will be able to challenge the doctor's findings and cross-examine them. The jury will decide whether the plaintiff has proved the facts of the case including breach of duty and causation.

Negligence

The plaintiff must convince jurors, when bringing a lawsuit for medical malpractice that it is more than likely that the doctor did not fulfill the obligations of a doctor and that these breaches resulted in injury. The lawyer for the plaintiff must demonstrate this with evidence gathered through pretrial discovery, which involves the disclosure of documents, including medical records from all parties involved in the lawsuit. This process also involves sworn statements that are recorded and used in trial.

A doctor was in breach of his or her professional obligation when he or she did something that a reasonable prudent doctor would not do under similar 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 an individual goes to the hospital for a hernia procedure and then has his or the gall bladder removed instead. This is medical negligence because the removal did not benefit the patient.

Medical malpractice lawsuits must be filed within a legally defined period of time, also known as the statute of limitations, which is different for each state. The victim must prove that the negligence resulted in injury, and then prove the amount of financial compensation they are entitled to.

Damages

If medical negligence has caused you to suffer injury, you should be made whole. At Scaffidi & Associates, we can assist you to receive an adequate and fair amount of compensation 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 engage in discovery. It is a process in which documents and declarations are disclosed under oath. During discovery medical records and notes from a doctor are usually requested.

In many states, to be eligible for compensation for injuries incurred by malpractice, you have to prove four things including a duty of good faith that the healthcare provider is obligated to perform and a breach of that obligation; a causal connection between the breach and injury; and damages resulting from the injury. If your attorney can demonstrate all of these elements of a medical negligence claim, you will have a strong case.

In certain instances the court can decide to award punitive damages which is intended to punish the perpetrator and deter others from engaging in similar acts. However, this is rare in medical malpractice cases since courts require evident proof of malice in order to award these awe-inspiring awards.