Medical Malpractice Lawsuits

Attorneys are bound by a fiduciary obligation to their clients and are required to act with diligence, skill and care. Attorneys make mistakes, as do other professional.

Some mistakes made by lawyers are a result of malpractice. To demonstrate legal malpractice, an aggrieved person must demonstrate duty, breach, causation and damage. Let's look at each one of these aspects.

Duty-Free

Doctors and other medical professionals swear to use their training and skills to cure patients and not cause harm to others. The duty of care is the basis for the right of patients to receive compensation when they suffer injuries due to medical malpractice. Your attorney will determine if the actions of your doctor violated the duty of care and whether these violations resulted in injury or illness.

Your lawyer must demonstrate that the medical professional owed you the duty of a fiduciary to perform with reasonable skill and care. This can be proved by eyewitness testimony of witnesses, doctor-patient documents and expert testimony from doctors who have similar education, experience and training.

Your lawyer must also prove that the medical professional breached their duty of care by not living up to the accepted standards of practice in their area of expertise. This is often referred to as negligence, and your attorney will compare the defendant's behavior to what a reasonable individual would do in the same situation.

Finally, your lawyer must prove that the defendant's breach of duty directly caused damage or loss to you. This is referred to as causation. Your lawyer will use evidence including your doctor's or patient documents, witness testimony and expert testimony to prove that the defendant's inability to meet the standards of care was the direct cause of injury or loss to you.

Breach

A doctor has a duty to patients of care that are consistent with the standards of medical professional practice. If a doctor fails to meet the standards, and the failure results in an injury and/or medical malpractice, then negligence can occur. Expert evidence from medical professionals who have the same training, certifications or experience can help determine the level of care for a specific situation. State and federal laws, as well as guidelines from the institute, help determine what doctors are required to do for certain kinds of patients.

To win a malpractice case, it must be shown that the doctor violated his or their duty of care, malpractice and that this breach was the direct cause of injury. In legal terms, this is known as the causation factor and it is vital to establish. For example in the event that a damaged arm requires an x-ray, the doctor must properly set the arm and then place it in a cast to ensure proper healing. If the doctor failed to do so and the patient was left with permanent loss of the use of the arm, then malpractice may have occurred.

Causation

Attorney malpractice claims rely on evidence that shows the attorney's errors resulted in financial losses for the client. For instance the lawyer fails to file a lawsuit within the prescribed time of limitations, resulting in the case being lost for ever the party who suffered damages can bring legal malpractice actions.

It is important to understand that not all errors made by attorneys constitute mistakes that constitute malpractice. Strategies and planning mistakes are not always considered to be malpractice. Attorneys have a broad range of discretion in making decisions so long as they're able to make them in a reasonable manner.

In addition, the law allows attorneys a lot of discretion to conduct discovery on behalf of a client, so long as it was not negligent or unreasonable. Failing to discover important documents or facts like medical reports or statements of witnesses, is a potential example of legal malpractice. Other examples of malpractice are a failure to add certain claims or defendants, such as forgetting to submit a survival count in a wrongful death lawsuit or the consistent and extended failure to communicate with clients.

It's also important that it must be proven that but for the lawyer's negligence, the plaintiff would have won the case. If not, the plaintiff's claims for malpractice will be rejected. This makes it very difficult to bring an action for legal malpractice. It's crucial to hire an experienced attorney.

Damages

In order to prevail in a legal malpractice case, the plaintiff must show actual financial losses resulting from the actions of an attorney. In the case of a lawsuit this has to be proved with evidence, such as expert testimony and correspondence between the attorney and client. A plaintiff must also prove that a reasonable lawyer could have prevented the damage caused by the lawyer's negligence. This is referred to as proximate cause.

The definition of malpractice can be found in a variety of ways. Some of the most common errors include: not meeting the deadline or statute of limitations; failing to conduct a conflict check on a case; applying the law in a way that is not appropriate to the client's situation; or breaking an obligation of fiduciary (i.e. commingling trust account funds with attorney's personal accounts) and mishandling the case, and failing to communicate with a client.

Medical malpractice attorneys lawsuits typically involve claims for compensatory damages. These compensations compensate the victim for out-of pocket expenses and losses such as hospital and medical bills, the cost of equipment to aid in recovery and lost wages. Victims can also claim non-economic damages like discomfort and pain or loss of enjoyment in their lives, and emotional stress.

In many legal malpractice cases there are cases for punitive and compensatory damages. The former compensates victims for the losses caused by the negligence of an attorney, while the latter is intended to deter any future malpractice committed by the defendant.