How to File a Medical Malpractice Case

A patient who discovers that a foreign object like surgical clamps, remains inside her body after gall bladder surgery may pursue a medical malpractice attorney malpractice suit. A successful claim must prove the elements of medical malpractice: duty, deviation from the duty, and direct cause.

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

The reason for injury

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

Malpractice cases typically involve a lot of expert testimony. Medical experts are required to testify whether or whether the health professional adhered to the standards of care for their specific area. They also have to testify to the damage caused by the actions or inactions of a doctor.

Injury caused by negligence and malpractice can be severe. A mistake in diagnosis can have devastating consequences, like an illness that could be life-threatening. Other kinds of injuries include operating on the incorrect body part or leaving surgical instruments inside the patient.

To establish a malpractice claim the patient must demonstrate four legal elements: a duty the physician owed to them; a breach in this duty; a subsequent injury and damages. In some states, such as New York, the law places a limit on the amount that can be awarded in an action for malpractice.

Causation

The injury element, also referred to as causation, is among the most important elements of marion medical malpractice lawsuit malpractice cases. To prove causation the plaintiff must show that they suffered their injury on the balance of probabilities because of the negligence of the doctor. This is a difficult task for a number of reasons.

For example, many injuries that are the subject of a medical malpractice lawsuit arise from long-term or ongoing conditions that were already present prior to treatment. The time-limit for a medical malpractice case could be extended over several years and the development of injuries can happen slowly.

In these cases, it is difficult to prove that a particular medical professional's failure to adhere to the standards of care caused the injury. However, the patient who was hurt could be able to use evidence gathered by the attorney, such as medical records and expert testimony.

During the discovery process which is an element of the legal procedure for preparation for a trial, your lawyer can request the lawyers of the defendants provide expert testimony and other documents. The doctor who is defending the lawsuit will then be asked to give evidence during a deposition, which is testimony under an oath. Your lawyer will be able to cross-examine doctor and challenge their conclusions. The jury will decide whether the plaintiff has proved the elements of the case including breach of duty, breach of contract and causation.

Negligence

When a medical negligence claim is filed, the plaintiff will have to convince the jury that it was more likely than not that the doctor breached his or her professional duties and that those breaches resulted in injuries. The plaintiff's lawyer has to prove this using evidence gathered through pretrial discovery, which involves asking for disclosure of documents such as medical records from all parties who are involved in the lawsuit. Depositions, where statements are made under oath, and recorded for use in trial, are also part of this process.

A doctor violated his or her professional obligation when he/she did something that a reasonable prudent doctor would not do under similar 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 an individual goes to the hospital for a procedure to treat a hernia and is later told that he or his gall bladder removed instead. This is medical malpractice as the removal of the gall bladder was not beneficial to the patient.

Medical malpractice lawsuits must be filed within a specific legal time frame, also known as the statute of limitations. This differs from state-to-state. The victim must show that the inadequate treatment resulted in injury, and after that they have to prove the amount of compensation they are entitled to.

Damages

If medical negligence has caused you to sustain an injury, you deserve to be made whole. Scaffidi & Associates can help you receive a fair and lawyers complete compensation for your losses.

The first step is to file and serve the complaint and summons to all named defendants in the lawsuit. The parties then engage in discovery, a process in which documents and statements are disclosed under an oath. Medical records and doctor's notes are typically requested during discovery.

In the majority of states, to receive compensation for injuries sustained by malpractice, you need to establish four elements including a duty of good faith due to the healthcare provider and a breach of that duty; a causal link between the breach and injury; and damages resulting from the injury. If your attorney can prove all of these elements in a medical negligence claim, you will have a strong case.

In certain instances, a court may give punitive damages, which are intended to penalize the offender and deter others from engaging in similar misconduct. It is not common however, in medical malpractice cases. The courts must have clear evidence of malice before they can give these extraordinary damages.