How to File a Medical Malpractice Case

A patient who finds that an object foreign to her like surgical clamps, remain inside her body following gall bladder surgery may file a medical malpractice lawsuit. A successful lawsuit must prove the legal elements of medical negligence: duty, deviance from this duty, direct cause, and injury.

Our clients must establish a direct connection between the breach of duty and the injury. This is known as proximate cause.

The reason for injury

A medical malpractice claim can be filed by the injured person or a person legally designated to represent them. Based on the specific 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 patient who died. The plaintiff in a medical malpractice lawsuit is the health care provider. This could be an accredited doctor, nurse or therapist.

Malpractice cases usually involve the testimony of experts. Medical experts are required to testify whether or the medical professional was in compliance with the standard of care for their specific area. They must also testify as to the harm caused by the actions or inactions of a doctor.

The consequences of negligence and mistakes can be devastating. A misdiagnosis can have serious consequences, including a life-threatening condition. Other types of injuries could include operating on the wrong body part or putting instruments inside the patient during surgery.

The patient must establish four legal elements in a malpractice claim that include a duty owed to the patient by the doctor; a breach of this obligation; a harm caused by the breach; and resulting damages. In some states such as New York the law limits the amount of money that can be awarded in a malpractice case.

Causation

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

For instance, a lot of injuries that are the basis of a medical malpractice lawsuit arise from long-term or ongoing illnesses that were present prior to treatment. The statute of limitations on medical malpractice attorney malpractice cases can be extended for a number of years and injuries may develop slowly.

In these instances it is necessary to prove that a medical professional's breach of the standard of care which led to the injury is a challenge. The attorney could have collected evidence, including expert testimony and medical records which the injured patient can use.

During the discovery process, which is a part of the legal process for preparation for a trial, your lawyer can request the lawyers for the defendants be made aware of expert testimony and other documents. The doctor who is defending the case will be required to give deposition. This is a declaration that is given under the oath. Your lawyer will be able to challenge the doctor's findings and cross-examine them. 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 the jury when bringing a lawsuit for medical malpractice in court, that it is likely that the doctor acted in violation of his or her duties as a physician and that those breaches resulted in injury. The lawyer representing the plaintiff must prove this using evidence gathered through pretrial discovery, which includes the disclosure of documents, including medical records from all parties who are involved in the lawsuit. Depositions, in which the statements are made under oath, and recorded for use in trial, are also a part of this process.

A doctor violated his or her professional obligations when he/she did something that a reasonably prudent physician would not do under similar circumstances. It must be proved that the breach resulted in injury directly to the patient. This is known as causation or the proximate cause. A patient may visit a hospital to repair a hernia but instead end up having their gall bladder removed. This is medical malpractice as the removal of the gall bladder did not benefit the patient.

Medical malpractice suits must be filed within a specific legal time frame, also known as the statute of limitations. This is different from state to state. The patient who was injured must show that the inadequate treatment caused injury, then they must establish what compensation they are entitled to.

Damages

If medical negligence has led you to suffer injury, you are entitled to be compensated. Scaffidi & Associates can help you get fair and complete compensation for your losses.

The first step is filing and serving an order and complaint on all defendants named in the lawsuit. The parties then begin discovery, a procedure in which documents and statements are made public under an oath. During discovery, medical records and doctor's notes are usually requested.

In many states, to get compensation for injuries caused by malpractice, you have to establish four elements: 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 caused by the injury. If your attorney can prove all these elements in a medical negligence claim, you will have an enviable case.

In some instances, courts can award punitive damages, which are intended to punish the perpetrator and discourage others from committing the same offense. It is not common however, particularly in medical malpractice cases. The courts must be able to prove evidence of intent to commit a crime before they are able to award these extraordinary damages.