Medical Malpractice Lawsuits

Attorneys have a fiduciary responsibilities to their clients, and are required to act with a high degree of skill, diligence and care. Attorneys make mistakes, just like every other professional.

Not every mistake made by an attorney constitutes legal malpractice. To prove legal malpractice, an victim must prove that there was breach of duty, causation, breach and damages. Let's look at each one of these aspects.

Duty

Medical professionals and doctors take an oath to use their knowledge and expertise to treat patients, and not to cause further harm. The legal right of a patient to compensation for injuries sustained from medical malpractice hinges on the notion of duty of care. Your attorney can help you determine if the actions of your doctor violated this duty of care, and whether those breaches caused injuries or illness to you.

Your lawyer must prove that the medical professional was bound by a fiduciary duty to act with reasonable skill and care. This relationship may be proven by eyewitness testimony, doctor-patient reports and expert testimony from doctors with similar educational, experience and training.

Your lawyer must also demonstrate that the medical professional violated their duty of care by failing to adhere to the accepted standards of care in their field. This is commonly called negligence. Your lawyer will evaluate what the defendant did with what a reasonable individual would do in a similar situation.

Then, your lawyer has to show that the defendant's breach of duty directly resulted in your loss or injury. This is referred to as causation. Your attorney will rely on evidence such as your doctor-patient reports, witness statements and expert testimony to demonstrate that the defendant's inability to uphold the standard of care in your case was the direct cause of your injury or loss.

Breach

A doctor is bound by a duty of care to his patients which conforms to the highest standards of medical practice. If a doctor malpractice lawsuits does not meet these standards, and the resulting failure causes an injury, then medical malpractice or negligence could result. Typically the testimony of medical professionals with similar training, skills and experience, as well as certifications and certificates will help determine what the standard of care is in a particular circumstance. State and federal laws, along with institute policies, help define what doctors are expected to provide for specific types of patients.

To win a malpractice claim it must be established that the doctor breached his or her duty to care and that the breach was the direct cause of an injury. In legal terms, this is called the causation element and it is essential that it is established. If a doctor has to obtain an xray of an injured arm, they must place the arm in a casting and correctly set it. If the doctor is unable to do this and the patient suffers a permanent loss of the use of the arm, then malpractice may be at play.

Causation

Attorney malpractice claims rely on evidence that demonstrates that the attorney's mistakes resulted in financial losses for the client. Legal malpractice claims may be brought by the injured party when, for instance, the attorney is unable to file a lawsuit within the timeframe of the statute of limitations and results in the case being forever lost.

It's important to recognize that not all mistakes made by lawyers are considered to be malpractice. The mistakes that involve strategy and planning aren't usually considered to be a violation of the law, and attorneys have a lot of latitude in making judgment calls so long as they're reasonable.

The law also grants attorneys an enormous amount of discretion to not conduct discovery on behalf of their clients provided that the failure was not unreasonable or a result of negligence. Legal malpractice can be committed when a lawyer fails to find important documents or facts, like medical reports or witness statements. Other examples of malpractice are the failure to include certain defendants or claims, for instance not noticing a survival count in wrongful death cases or the recurrent failure to communicate with clients.

It is also important to remember that it must be proven that, had it not been the negligence of the lawyer the plaintiff would have won the underlying case. In the event that it is not, the plaintiff's claim for malpractice will be rejected. This makes it difficult to file a legal malpractice attorney claim. This is why it's important to find an experienced attorney to represent you.

Damages

To win a legal malpractice case, a plaintiff must demonstrate actual financial losses resulting from the actions of an attorney. This must be shown in a lawsuit using evidence such as expert testimony, correspondence between client and attorney, billing records and other records. A plaintiff must also demonstrate that a reasonable lawyer could have prevented the damage caused by the lawyer's negligence. This is called proximate causation.

Malpractice can manifest in a number of different ways. The most frequent errors include: not meeting an expiration date or statute of limitations; not conducting an investigation into a conflict in a case; applying the law in a way that is not appropriate to the client's specific circumstances; and violating the fiduciary obligation (i.e. Commingling funds from a trust account the attorney's own accounts as well as failing to communicate with the client are all examples of malpractice.

In the majority of medical malpractice cases the plaintiff seeks compensatory damages. The compensations pay for out-of-pocket expenses as well as losses such as medical and hospitals bills, the cost of equipment to help recover and lost wages. Victims are also able to claim non-economic damages, such as discomfort and pain, loss of enjoyment of their lives, and emotional anxiety.

Legal malpractice cases usually involve claims for compensatory as well as punitive damages. The former compensates a victim for the losses caused by the negligence of the attorney, while the latter is designed to discourage future malpractice by the defendant.