How to File a Medical Malpractice Case

A patient who discovers that an object that is foreign like surgical clamps, is still inside her body following 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.

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

Cause of Injury

A medical malpractice claim 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 or an adult child parent, guardian ad litem or the administrator or executor of the estate of the patient who died. In a medical negligence case the defendant is the health care provider. This could be a doctor, nurse, therapist or any other health professional.

Malpractice cases usually involve a lot of expert testimony. Medical experts are required to testify as to whether the medical professional performed his duties in accordance with the standard of care in their specific area of expertise. They also have to testify to the damage caused by the doctor's actions or inactions.

Accidents caused by negligence or negligence can be very serious. An incorrect diagnosis can lead to serious consequences, including the possibility of a life-threatening illness. Other types of injuries could include operating on the wrong body part or leaving instruments inside the patient during surgery.

The patient must establish four legal elements in a malpractice case that include a duty owed to the patient by the doctor or a breach of the obligation; an injury resulting by the breach and resulting damages. In some states, such as New York, the law puts a limit on amount that can be awarded in an injury resulting from a malpractice claim.

Causation

The element of injury is known as the causation. It is one of the most important elements in a medical negligence claim. To prove causation, the plaintiff must demonstrate that their injury was the result of the doctor's negligence. This can be a challenging task for a number of reasons.

For instance, many of the injuries that are the subject of a medical malpractice attorney malpractice lawsuit are the result of long-term or ongoing conditions that were present before treatment began. Often the statute of limitations for a medical negligence claim is extended over a period of years, and the injuries can develop gradually.

In these cases, proving that a medical professional's breached the standard of care led to the injury can be difficult. The attorney may have gathered evidence, including expert testimony and medical records that the injured person can utilize.

During the discovery process, which is a component of the legal process for preparation for trial, your lawyer can request the disclosure of expert testimony and other documents from defense attorneys of the defendants. The doctor who is representing the case will be required to give deposition. This is a testimony which is under the oath. Your lawyer will be able to cross-examine doctor and challenge their findings. The jury will then decide if the plaintiff has proved the necessary elements of their claim, which includes obligation, breach, causation and injury.

Negligence

When a medical negligence claim is filed in court, the plaintiff must to convince the jury that it was more likely than not that the physician violated professional obligations and that those violations caused injuries. The plaintiff's lawyer must show this through evidence gathered through pre-trial discovery, which involves seeking disclosure of documents, which includes medical records from all parties who are involved in the lawsuit. Depositions, wherein statements are made under oath, and recorded for trial, are also a part of this procedure.

A doctor has breached their professional duty when they did something that a reasonable prudent physician would not have done under similar circumstances. It must be proven that the breach resulted in injury directly to the patient. This is referred to as causation or proximate causes. For instance, a patient goes to the hospital for a hernia surgery and is later told that he or the gall bladder removed instead. This is medical malpractice because the removal of the gall bladder was not beneficial to the patient.

Medical malpractice lawsuits must be filed within a specific legal period, referred to as the statute of limitations. This differs from state to state. The victim must prove that the care provided was substandard and resulted in injury, and then show how much compensation he or she deserves.

Damages

If medical negligence has led you to suffer injury, you are entitled to be compensated. At Scaffidi & Associates, we can help you receive the full and fair compensation for your losses.

The first step is filing and serving a complaint and summons on all defendants named in the lawsuit. The parties engage in discovery. This is a procedure which involves the disclosure of documents and statements made public under an oath. Medical records and notes of the doctor are usually requested during discovery.

In most states, you have to prove four things to be compensated for injuries incurred by medical malpractice: a duty owed by the healthcare provider and a breach of that duty; a causal link between the breach and the patient's injury and damages resulting from the injury. If your attorney can establish all of these elements, you will have an argument for financial recovery in a medical negligence claim.

In some cases, courts can give punitive damages, which are designed to punish the perpetrator and discourage others from committing the same offense. This isn't often however, in medical malpractice cases. The courts must have a clear evidence of malice before they can decide to award these extraordinary damages.