How to File a Medical Malpractice Case

A patient who discovers a foreign object, such as surgical clamps, remain inside her body following gall bladder surgery can bring a medical malpractice lawsuit. A successful claim must prove the elements of medical negligence: duty, deviation from the norm and direct cause.

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

Causes of Injury

A claim for medical malpractice can be filed either by the injured person or a legal representative. Depending on the circumstances, this may be the spouse of the patient, an adult child or parent, guardian ad-litem or executor or administrator of the estate of the deceased patient. In a medical negligence case the defendant is the health care provider. This could be a licensed nurse, doctor or therapist.

Expert testimony is usually required in cases of malpractice. Medical experts must provide evidence to prove that the medical professional was acting in accordance with the standards of treatment in their special area of expertise. They also need to testify on the injury caused by the physician's actions or inactions.

Injuries resulting from malpractice and negligence can be very severe. For instance, a misdiagnosis of a health issue could have life-threatening effects. Other kinds of injuries be caused by operating on an incorrect body part or putting surgical instruments in the patient.

The patient must establish four legal elements of a malpractice claim which include a duty to the patient by the physician; a breach of this duty; an injury caused by the breach and the consequential damages. In certain states, like New York the law limits the amount of money that can be awarded for a malpractice claim.

Causation

The element of injury is known as the causation. It is one of most crucial aspects in a medical malpractice claim. To prove causation, a plaintiff must show that they suffered their injury on the balance of probabilities because of the physician's negligence. This can be a difficult task for a number of reasons.

A lot of the injuries that form the basis for medical negligence lawsuits result from long-term conditions or ongoing illnesses that existed before treatment started. Often the statute of limitations for a medical malpractice claim extends out over a number of years and the injuries may develop slowly.

In these instances it can be difficult to prove that a specific medical professional's breach of the standards of care caused the injury. However, the patient who is afflicted could be able to make use of evidence gathered by the attorney, including medical records and expert testimony.

During the discovery process, which is a component of the legal procedure for prepping for trial, your lawyer will seek disclosure of expert testimony and other evidence from lawyers of the defendants. The doctor defending the lawsuit is then called to testify during depositions, medical malpractice lawsuit which are the testimony under the oath. Your lawyer will be able to challenge the doctor's findings and cross-examine them. The jury will decide whether the plaintiff has substantiated the facts of the case which include breach of duty, breach and causation.

Negligence

The plaintiff must convince jurors, when filing a claim for medical malpractice in court, that it is likely that the physician violated his or her obligations as physician and that the violations caused injury. The plaintiff's attorney must prove this by using evidence gathered during pretrial discovery. This includes requesting documents, including medical malpractice attorney records, from all parties involved in a lawsuit. This process also involves sworn declarations that are recorded and used in trial.

A doctor violated his or her professional obligation in the event that he or her did something that a prudent physician would not do under similar circumstances. It must be established that the breach caused the injury directly to the patient. This is known as causation or proximate cause. A patient may visit the hospital to repair a hernia and instead, have their gall bladder removed. This is medical negligence as the procedure did not benefit the patient.

Medical malpractice suits must be filed within a specific legal time limit, known as the statute of limitations. This is different from state to state. The injured patient has to 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 led you to suffer an injury, you are entitled to be made whole. At Scaffidi & Associates, we can assist you in obtaining full and fair compensation for your losses.

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

In many states, to be eligible for compensation for injuries incurred by malpractice, you have to establish four elements such as a duty of care that is 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 establish all of these elements, you have an extremely strong case for financial recovery in a medical negligence claim.

In some cases the court could make punitive damages a possibility which is intended to punish the wrongdoer and discourage others from committing similar crimes. However, this is rare in medical malpractice lawsuit malpractice cases, because the courts require specific proof of malice to award these awe-inspiring awards.