How to File a Medical Malpractice Case

A patient who discovers that an object foreign to her 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 aspects of medical negligence: duty, deviance from this duty, direct cause and injury.

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

Causes of Injury

A medical malpractice lawsuit can be filed by the person who has been injured or a legal person to act on their behalf. 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 case of medical malpractice, the defendant is the health care provider. This could be a doctor, nurse, therapist or any other health professional.

Malpractice cases typically involve a lot of expert testimony. Medical experts are required to testify whether or not the health care provider adhered to the standards of care for their particular area of expertise. They must also testify to the harm that was caused by the actions or inactions of the doctor.

The injuries that result from malpractice and negligence can be extremely serious. For instance, a wrong diagnosis of a health issue could result in life-threatening consequences. Other kinds of injuries include operating on the incorrect body part or putting surgical instruments in the patient.

In order to prove a malpractice claim the patient must demonstrate four legal elements: a duty the doctor owed to them; a breach of this duty; a subsequent injury and damages. In some states, like New York, the law restricts the amount of money that can be awarded for the malpractice claim.

Causation

The injury element, also known as causation, is one of the most important aspects of a medical malpractice case. To prove causation, a plaintiff must show that they suffered their injury on the basis of probabilities due to of the physician's negligence. This can be a challenging task due to a variety of reasons.

For instance, a lot of injuries that are the subject of a medical malpractice lawsuit stem from long-term, or ongoing ailments that were present prior to treatment. The statute of limitations on a medical malpractice case can be extended over several years, and injuries can develop slowly.

In these instances, proving that a medical professional's failure to adhere to the standard of care that led to the injury can be difficult. However, the patient who was hurt may be able to use evidence collected by the attorney, like medical documents and expert testimony.

During the discovery process, which is an integral part of the legal procedure getting ready for trial, your lawyer may seek disclosure of expert testimony and other documents from the defendants' attorneys. The doctor who is defending the case will be asked to testify in a deposition. This is a testimony which is under an oath. Your lawyer will be able to cross-examine doctor and contest their conclusions. The jury will then decide whether the plaintiff has proved the essential elements of their case such as obligation, breach, causation and injury.

Negligence

If a medical malpractice lawsuit is filed, the plaintiff will have to convince the jury that it was more likely than not that the physician committed a breach of professional obligations and that those breaches resulted in harm. The lawyer for the plaintiff must show this through evidence gathered through pretrial discovery, which involves requesting disclosure of documents including medical records from all parties who are involved in the lawsuit. The process also involves sworn declarations that are recorded and used in trial.

A doctor violated the professional duties of a doctor if he or she did something that a prudent physician would not do in similar circumstances. However, it must be proven that the breach directly caused injury to the patient. This is referred to as causation or proximate causes. For example an individual goes to the hospital for a hernia surgery and then has his 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 legally prescribed period of time, called the statute of limitations, which varies by state. The injured patient must establish that the care provided was substandard and caused injury, and then prove the amount of financial compensation he or she deserves.

Damages

If medical negligence has led you to suffer an injury, you deserve to be made whole. Scaffidi & Associates can help you receive fair and full compensation for your losses.

The first step is to file and serve a complaint and summons on all named defendants in the lawsuit. The parties engage in discovery. This is a process where documents and statements are disclosed under oath. Medical records and the notes of a doctor are typically requested during discovery.

In the majority of states, to receive compensation for injuries caused by malpractice, you have to establish four elements that include a duty of care that is due to the healthcare provider, a breach of this duty; a causal link between the breach and injury and damages that result from the injury. If your attorney can establish all of these elements, you will have a strong case for financial compensation in a medical malpractice case.

In some cases the court might decide to award punitive damages, which is meant to punish the wrongdoer and deter others from engaging in similar crimes. This isn't often, however, in medical malpractice cases. The courts must have clear evidence of malice before they can decide to award these extraordinary damages.