How to File a Medical Malpractice Case

A patient who discovers a foreign object like surgical clamps, remains inside her body following gall bladder surgery may be able to file a lawsuit for medical malpractice. A successful claim must establish the legal elements of medical negligence: duty, deviation from this duty, direct cause, and injury.

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

Causes of Injury

A medical malpractice lawsuit can be filed by the injured person or a legal representative. It could be the spouse or adult child parent, guardian, or administrator of a deceased patient's estate, based on the circumstances. The plaintiff in a medical malpractice lawyers malpractice suit is the health professional. This could be a licensed nurse, doctor or therapist.

Expert testimony is typically required in cases of malpractice. Medical experts must provide evidence to prove that the doctor performed his duties in accordance with the standard of treatment in their specific area of expertise. They must also testify as to the harm caused by the doctor's actions or inactions.

Injuries caused by negligence and mistakes can be catastrophic. A misdiagnosis could have grave consequences, like an illness that could be life-threatening. Other types of injuries include operating on the incorrect body part or leaving surgical instruments inside the patient.

The patient must prove four legal elements in 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 certain states, such as New York the law limits the amount of money that can be awarded in a case of malpractice.

Causation

The injury element, also referred to as causation, is one of the most important aspects of a medical malpractice case. To establish causation the plaintiff must prove that the injury was caused by a physician's negligence. This can be a difficult task due to a variety reasons.

For instance, a lot of injuries that are the subject of a medical malpractice lawsuit arise from long-term or ongoing ailments that were in the process of being treated prior to. The time-limit for a medical malpractice lawsuit can be extended over a period of time and injuries can develop slowly.

In these situations, it is difficult to prove that one particular medical professional's breach of standard of care led to the injury. The attorney could have gathered evidence, such as medical records and expert testimony which the injured patient could use.

During the discovery process, which is a component of the legal procedure getting ready for trial, your lawyer will seek disclosure of expert testimony as well as other documents from defendants' attorneys. The doctor defending the lawsuit is then called to testify during depositions, which are testimony that is under the oath. Your lawyer is able to cross-examine doctor and contest their findings. The jury will then decide whether the plaintiff has proved the essential elements of their claim, which includes the duty of care, breach, causation and injury.

Negligence

The plaintiff must convince the jury when bringing a claim for medical malpractice that it is likely that the doctor violated his or her obligations as physician and that the breaches resulted in injury. The plaintiff's attorney has to prove this by using evidence gathered during pretrial discovery. This includes requesting documents, including medical records as well as other documents from all parties in a lawsuit. Depositions, in which the statements are made under oath, and recorded for trial, are also part of this process.

A doctor breached his or her professional obligation when he/she did something that a reasonably prudent physician would not do in the same circumstances. However, it must be proven that the breach directly caused injury to the patient. This is known as causation or proxy causes. For instance when a patient is taken to the hospital for a hernia operation and is then able to have his or her gall bladder removed instead. This is medical malpractice as the removal of the gall bladder did not benefit the patient.

Medical malpractice lawsuits must be filed within a legally defined period of time, also known as the statute of limitations, which is different for each state. The injured patient has to prove that the substandard treatment caused injury, and then they must show what compensation they're entitled to.

Damages

You deserve to be compensated for any injuries you've suffered due to medical negligence. At Scaffidi & Associates, we will assist you in receiving the full and fair compensation you deserve for your losses.

The first step is filing and serving an order and complaint on all defendants named in the lawsuit. The parties then engage in discovery, a process by which documents and declarations are made public under the oath. Medical records and doctor's notes are typically requested during discovery.

In most states, to receive compensation for injuries caused by negligence, you must to prove four things 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, then you've got an extremely strong case for financial compensation in a medical malpractice case.

In some cases the court can decide to award punitive damages that is designed to punish the perpetrator and discourage others from committing similar acts. This isn't often, however, in medical malpractice cases. The courts must have very clear evidence of malice before they may decide to award these extraordinary damages.