How to File a Medical Malpractice Case

A patient who finds an object foreign to her body, such as surgical clamps within her body after gall bladder surgery could bring a lawsuit against a doctor for medical malpractice. A successful claim has to prove the elements of medical malpractice: duty, deviation from this duty and direct reason.

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

The reason for injury

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

Expert testimony is often required in malpractice cases. Medical experts are required to testify as to whether the medical professional performed his duties in accordance with the standard of care in his or her specific area of expertise. They also have to testify to the harm caused by the actions or inactions of a doctor.

Injuries caused by negligence and mistakes can be catastrophic. For instance, a misdiagnosis of a health condition can result in life-threatening consequences. Other kinds of injuries include operating on the incorrect body part or leaving surgical instruments inside the patient.

The patient must prove four legal elements of a malpractice claim that include a duty owed to the patient by the physician and a breach of that obligation; a harm caused by the breach and the consequential damages. In some states, like New York, the law places a limit on the amount of money that can be awarded for an action for malpractice.

Causation

The injury element is also called the causation. It is one of most important aspects in a medical malpractice claim. To prove causation, the plaintiff must prove that the injury was the result of the doctor's negligence. This is a difficult task for a number of reasons.

Many of the injuries that form the basis of a medical negligence lawsuit result from long-term conditions or ongoing conditions that existed prior to when treatment started. Often the statute of limitation for a medical malpractice lawsuit extends over a number of years, and the injuries can develop gradually.

In these cases, it is difficult to prove that one particular medical professional's failure to adhere to the standard of care caused the injury. The attorney may have collected evidence, including expert testimony and medical records, that the injured patient can use.

During the discovery process, which is a component of the legal procedure for preparing for trial, your lawyer can ask for the disclosure of expert testimony and other evidence from defense attorneys of the defendants. The doctor who is defending the lawsuit is then asked to give evidence during depositions, which are the testimony under oath. Your lawyer can cross-examine the doctor and challenge their findings. The jury will then decide whether the plaintiff has proven the essential elements of their claim, which includes breach of duty, causation, breach of duty and injury.

Negligence

The plaintiff must convince the jury when bringing a lawsuit for medical malpractice that it is more than likely that the doctor violated the obligations of physician and that the breaches resulted in injury. The lawyer representing the plaintiff must demonstrate this with evidence gathered through pretrial discovery, which involves requesting disclosure of documents including medical records from all parties involved in the lawsuit. Depositions, where statements are made under oath, and recorded for use at trial, are also a part of this procedure.

A doctor violated his or her professional duty if he or she did something that a reasonably prudent doctor would not do under the same 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 proximate causes. For example the patient is admitted to the hospital for a hernia surgery and then has his or her gall bladder removed instead. This is medical malpractice because the removal of the gall bladder was not beneficial to the patient.

Medical malpractice suits must be filed within a legal period, referred to as the statute of limitations. This differs from state to state. The person who has suffered injury must prove that the negligence caused injury and then he or she must show how much compensation he or her deserves.

Damages

If medical negligence has led you to sustain an injury, you should be compensated. At Scaffidi & Associates, we can assist you to receive the full and fair compensation you deserve for your loss.

The first step in a lawsuit is to make a complaint and Medical Malpractice Lawsuit serve it, summons and other documents on all defendants. The parties then proceed to discovery, in which documents and declarations are made public under an oath. Medical records and doctor's notes are typically requested during discovery.

In most states, you have to prove four things to be compensated for any injuries caused by medical malpractice: a duty owed by the healthcare provider in breach of that duty; a causal relationship between the breach and the injury suffered by the patient and the damages that result from the injury. If your attorney can establish all of these elements, you have an argument for financial compensation in a medical malpractice case.

In certain instances the court could make punitive damages a possibility that is intended to punish the perpetrator and discourage others from committing similar conduct. This is not the norm however, particularly in medical malpractice cases. The courts must have very clear evidence of intent to commit a crime before they are able to make these extraordinary awards.