How to File a Medical Malpractice Case

A patient who discovers an object that is foreign like surgical clamps, remains inside her body following gall bladder surgery can file a medical malpractice lawsuit. A successful lawsuit must prove the legal elements of medical negligence: duty, deviation from this duty, direct causes, 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.

Causes of Injury

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

The majority of cases involving malpractice involve the testimony of experts. Medical experts are required to testify whether or whether the health professional followed the standard of care in their specific field. They also have to testify about the injury caused by the doctor's actions or inactions.

The consequences of malpractice and negligence can be very serious. For example, a misdiagnosis of a health condition can have life-threatening consequences. Other types of injuries include performing surgery on the wrong body part or leaving instruments inside the patient during surgery.

The patient must prove four legal elements in a malpractice case: a duty owed to the patient by the physician; a breach of this obligation; an injury resulting by the breach; and the consequential damages. In certain states, such as New York, the law places a limit on the amount that can be awarded for a malpractice claim.

Causation

The injury element, also referred to as causation is one of the most important elements of a medical malpractice attorneys malpractice case. To establish causation, the plaintiff must demonstrate that they suffered their injury based on a balance of probabilities as a result of the physician's negligence. This can be a challenging task due to a variety of reasons.

Many of the injuries that are the basis for a medical negligence lawsuit result from chronic conditions which were present before treatment began. The time-limit for a medical malpractice lawsuit can be extended over the course of several years and injuries can develop slowly.

In these instances, it is difficult to prove that one particular medical professional's breach of the standard of care caused the injury. However, the person who was harmed might be able use the evidence gathered by the attorney, like medical records and expert testimony.

During the discovery process, which is an integral part of the legal process for getting ready for trial, your lawyer could ask for the disclosure of expert testimony and other evidence from lawyers of the defendants. The doctor who is representing the case will be asked to appear in deposition. This is a testimony that's given under the oath. Your lawyer can challenge doctor's findings and cross-examine them. The jury will decide if the plaintiff has proven the facts of the case, including duty, breach and causation.

Negligence

The plaintiff must convince jurors, in a case of medical malpractice in court, that it is more likely that the doctor violated his or her obligations as medical professional and that these mistakes led to injuries. The attorney representing the plaintiff must demonstrate this using evidence gathered during discovery. This includes requesting documents, including medical records and other records from all parties in a lawsuit. Depositions, in which the statements are made under oath and recorded for trial, are also part of this procedure.

A doctor violated his or her professional obligations when he or she did something that a prudent physician would not do in similar circumstances. However it must be proved that the breach directly caused injury to the patient. This is known as causation or proximate causes. A patient could go to the hospital to repair a hernia 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 a legally-defined period of time, called the statute of limitations that varies from state to state. The patient who was injured must prove that the substandard treatment caused injury, and then they must prove what monetary compensation they're entitled to.

Damages

If medical negligence has caused you to suffer injury, you deserve to be made whole. At Scaffidi & Associates, we can assist you to receive full and fair compensation for your losses.

The first step is filing and serving a summons and complaint to all named defendants in the lawsuit. The parties then engage in discovery. This is a procedure in which documents and declarations are disclosed under an oath. During discovery, medical records and notes from a doctor will typically be sought.

In most states, you need to prove four things in order to be compensated for any injuries caused by medical malpractice: a duty owed by the healthcare provider in breach of that obligation; a causal connection between the breach and the patient's injury as well as damages that result from the injury. If your attorney can prove all these aspects of a medical negligence claim, you'll have a strong case.

In some instances the court might make punitive damages a possibility that is designed to penalize a wrongdoer and discourage others from committing similar conduct. This isn't often however, in medical malpractice cases. The courts must have a clear evidence of malice before they may decide to award these extraordinary damages.