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How to File a Medical Malpractice Case

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

It is essential for our clients to establish a direct link between the breach of duty and the damage which is referred to as proximate cause.

The reason for injury

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

Malpractice cases usually require a lot of expert testimony. Medical experts must provide evidence to prove that the medical professional was acting in accordance with the standards of care in his or her specific area of expertise. They must also testify to the harm resulting from the actions or inactions of a doctor.

Injuries caused by negligence and mistakes can be catastrophic. A mistake in diagnosis can have devastating consequences, such as a life-threatening condition. Other types of injuries could include performing surgery on the wrong body part or putting instruments inside the patient during surgery.

The patient must prove four legal elements of a malpractice lawsuit that include a duty owed to the patient by the doctor; a breach of this duty; injury caused by the breach and resulting damages. In certain states like New York the law limits the amount of money awarded in a case of malpractice.

Causation

The injury element is called the causation. It is one of most important elements in a medical malpractice claim. To prove causation the plaintiff must demonstrate that they sustained the injury on the balance of probabilities due to due to the negligence of the doctor. This is a difficult task due to a variety reasons.

For instance, many of the injuries that are the basis of a medical malpractice lawsuit stem from long-term or ongoing conditions that were present prior to treatment. The time limit for medical malpractice law firms malpractice cases can be extended over a period of time and the development of injuries can happen slowly.

In these instances it is necessary to prove that a medical professional's breach of the standard of care led to the injury is not easy. However, the patient who was hurt could be able to use evidence gathered by the attorney, such as medical documents and expert testimony.

During the discovery process, which is a part of the legal procedure preparing for trial, your lawyer can request the disclosure of expert testimony and other evidence from lawyers of the defendants. The doctor who is representing the case will be required to give deposition. This is a testimonies which is under oath. Your lawyer may cross-examine the doctor and contest their conclusions. The jury will then decide whether the plaintiff has proved the essential elements of their case, including obligation, breach, causation and injury.

Negligence

The plaintiff must convince jurors, in a case of medical malpractice that it is likely that the doctor violated his or her duties as physician and that the breaches resulted in injury. The plaintiff's attorney has to demonstrate this using evidence obtained during discovery. This includes soliciting documents, including medical records, from all parties involved in the lawsuit. The process also involves sworn declarations that are recorded and used at trial.

A doctor has breached their professional duty if they did something a reasonable prudent physician would not have done in the same circumstances. However it must be established that the breach directly caused injury to the patient. This is referred to as causation, or causal proximate causes. A patient may visit a hospital to have a hernia repaired, and instead, have their gall bladder removed. This is medical negligence as the removal did not benefit the patient.

Medical malpractice lawsuits must be filed within the legal time frame, also known as the statute of limitations. This varies from state to state. The victim must prove that the substandard care resulted in injury, and then he or she must prove the amount of financial compensation he or she is 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 complete compensation for your losses.

The first step in a lawsuit is to make a complaint and serve it as well as summons and other documents on all defendants. The parties then proceed to discovery, a process by which documents and statements are made public under the oath. During discovery medical records and doctor's notes are usually requested.

In the majority of states, you have to prove four things in order to be compensated for injuries caused by medical malpractice such as a duty due to the healthcare provider and a breach of the obligation; a causal connection between the breach and the injury suffered by the patient; and damages that flow from the injury. If your attorney can prove all of these aspects of a medical negligence claim, you will have an impressive case.

In some cases, the court may make punitive damages a possibility which is intended to punish the perpetrator and deter others from engaging in similar crimes. However, this is rare in medical malpractice cases, because the courts require precise proof of malice before they can make these extraordinary awards.