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How to File a Medical Malpractice Case

A patient who finds that a foreign object like surgical clamps, remain inside her body after gall bladder surgery can bring a medical malpractice lawsuit. A successful claim must demonstrate the elements of medical malpractice lawyer negligence: duty, deviation from the norm and direct cause.

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

Causes of Injury

A claim for medical malpractice can be filed either by the victim or an attorney. Based 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. The plaintiff in a medical malpractice suit is the health professional. This could be a doctor, nurse or therapist, or any other health professional.

Expert testimony is typically required in malpractice cases. medical malpractice attorneys experts are required to testify as to whether the healthcare provider did what was required of treatment in their special area of expertise. They also have to testify to the harm caused by the doctor's actions or inactions.

The consequences of malpractice and negligence can be very severe. For example, a misdiagnosis of a medical condition could result in life-threatening consequences. Other types of injuries could include operating on the wrong part or leaving instruments inside the patient during surgery.

In order to establish a malpractice case the patient must demonstrate four legal elements: a duty the doctor owed to them; a breach in this duty; a resultant injury and damages. In certain states, such as New York, the law places a limit on the amount that can be awarded in an injury resulting from a malpractice claim.

Causation

The element of injury is called the causation. It is among the most important aspects in a medical malpractice claim. To prove causation, the plaintiff must demonstrate that they sustained their injury on the balance of probabilities because due to the negligence of the doctor. This can be a difficult task due to a variety reasons.

Many of the injuries that form the basis of a medical negligence suit result from long-term or ongoing illnesses that existed before treatment started. The time-limit for a medical malpractice case can be extended over a period of time and injuries can develop slowly.

In these situations it is often difficult to prove that a specific medical professional's breach of standards of care caused the injury. However, the aggrieved patient could be able to make use of evidence gathered by the attorney, including medical documents and expert testimony.

During the discovery process, which is a part of the legal procedure prepping for trial, your lawyer will seek disclosure of expert testimony as well as other documents from lawyers of the defendants. The doctor who is defending the case will be asked to give deposition. This is a declaration that's given under an oath. Your lawyer can challenge doctor's findings and cross-examine them. The jury will decide whether the plaintiff has established all the elements of the case, including duty, breach and causation.

Negligence

The plaintiff must convince the jury, when filing a claim for medical malpractice to show that it is likely that the physician violated his or her responsibilities as medical professional and that these breaches resulted in injury. The plaintiff's lawyer must show this through evidence gathered through pre-trial discovery, which involves asking for disclosure of documents such as medical records from all parties who are involved in the lawsuit. Depositions, in which the statements are made under oath and recorded for trial, are also part of this procedure.

A doctor was in breach of his or her professional duty if he or she did something that a prudent doctor would not do under the same circumstances. However it must be established that the breach directly caused injury to the patient. This is known as causation or proxy causes. A patient might go to the hospital in order to repair a hernia, and instead, have their gall bladder removed. This is medical negligence because the procedure 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 has to prove that the negligent treatment caused injury, and they must prove what monetary compensation they deserve.

Damages

You should be compensated for any injuries that you've suffered as a result of medical negligence. At Scaffidi & Associates, we can assist you in obtaining the full and fair compensation you deserve for your loss.

The first step is filing and serving the complaint and summons to all defendants named in the lawsuit. The parties participate in discovery. This is which involves the disclosure of documents and statements revealed under oath. During discovery, medical records and notes from a doctor are usually requested.

In most states, you have to establish four elements to be compensated for any injuries caused by medical malpractice which includes a duty to the healthcare provider; a breach of that duty; a causal connection between the breach and the injury suffered by the patient as well as damages that result from the injury. If your attorney can prove all these elements in a medical malpractice claim, you'll have a strong case.

In some cases, a court may decide to award punitive damages. These are designed to punish the culprit and deter others from committing the same offense. This is rare however, especially in medical malpractice cases. The courts must be able to prove evidence of malice before they can award these extraordinary damages.