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How to File a Medical Malpractice Case

A patient who finds that a foreign object, such as surgical clamps, remains inside her body following gall bladder surgery may be able to file a lawsuit for medical malpractice. A successful claim has to prove the elements of medical malpractice: duty, deviation from this duty and the direct cause.

It is vital for our clients to establish a direct relationship between the breach of duty and the resulting injury that is known as proximate causation.

The reason for injury

A medical malpractice case can be filed by the injured patient or a person who is legally authorized to represent them. It could be the spouse, adult child, parent, guardian or administrator of a deceased patient's estate depending on the circumstances. In a medical malpractice case the defendant is the health care provider. This could be a doctor, nurse or therapist, or any other health professional.

Expert testimony is typically required in cases of malpractice. Medical experts must determine if the healthcare provider did what was required of treatment in their special area of expertise. They also have to testify about injuries caused by physician's actions or inactions.

Injuries that result from malpractice or negligence can be quite severe. A mistake in diagnosis can have devastating consequences, including a life-threatening condition. Other types of injuries include operating on the wrong body part or leaving surgical instruments inside the patient.

The patient must prove four legal elements of a malpractice lawsuit: a duty owed to the patient by the doctor and a breach of this obligation; an injury resulting by the breach and the resulting damages. In certain states like New York the law limits the amount of money awarded for a malpractice claim.

Causation

The injury element, also referred to as causation is one of the most important aspects of a medical malpractice case. To prove causation, a plaintiff must demonstrate that they suffered an injury on a balance of probabilities due to of the physician's negligence. This can be a difficult task for a number of reasons.

For instance, many injuries that are the basis of a medical malpractice lawsuit stem from long-term or ongoing ailments that were present before treatment began. Often the statute of limitations for a claim involving Medical Malpractice Law Firm malpractice extends over a number of years and the injuries can develop gradually.

In these instances the proof that a medical professional's failure to adhere to the standard of care led to the injury is difficult. However, the aggrieved patient could be able to make use of evidence collected by the attorney, including medical documents and expert testimony.

In the discovery process that is 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 asked to take a deposition. This is a testimonies which is under the oath. Your lawyer can challenge doctor's findings and cross-examine them. The jury will then decide if the plaintiff has proven the essential elements of their case, including breach of duty, causation, breach of duty and injury.

Negligence

The plaintiff must convince the jury in a case of medical malpractice in court, that it is likely that the doctor did not fulfill his or her obligations as a physician and that those mistakes led to injuries. The plaintiff's lawyer must show this through evidence gathered through pretrial discovery, which entails requesting disclosure of documents including medical records from all parties who are involved in the lawsuit. Depositions, where statements are made under oath, and recorded for use in trial, are also part of this process.

A doctor violated his or her professional duty when he/she did something that a reasonable prudent physician would not do in the same circumstances. It must be proven that the breach was the cause of the injury directly to the patient. This is called causation or causal proximate causes. For example an individual goes to the hospital for a hernia procedure and is then able to have his or the gall bladder removed instead. This is medical negligence since the procedure was not beneficial to the patient.

Medical malpractice lawsuits must be brought within a legally prescribed period of time, also known as the statute of limitations, that varies from state to state. The person who suffered the injury must prove that the negligent treatment resulted in injury, and after that they must prove what monetary compensation they deserve.

Damages

You are entitled to compensation for any injuries you have suffered due to medical negligence. At Scaffidi & Associates, we will assist you in receiving full and fair compensation for your loss.

The first step in a lawsuit is to file and serve a complaint along with summons and other papers on all defendants. The parties then proceed to discovery, a procedure in which documents and statements are made public under the oath. During discovery medical malpractice lawyers records and notes from a doctor will usually be requested.

In the majority of states, to receive compensation for injuries sustained by malpractice, you have to establish four elements: 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 resultant from the injury. If your attorney can establish all of these elements, then you've got an argument for financial recovery in a medical negligence claim.

In certain instances, the court may award punitive damage, which is meant to punish a wrongdoer, and deter others from engaging in similar crimes. However, this is not the norm in medical malpractice cases, as courts require clear evidence of malice to give these extraordinary awards.