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How to File a Medical Malpractice Case

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

It is vital for our clients to establish a direct connection between the breach of duty and the resulting injury which is referred to as proximate cause.

The reason for injury

A medical malpractice claim can be filed either by the injured person or an attorney. This could be a spouse, adult child or parent, medical malpractice guardian or administrator of the estate of a deceased person depending on the circumstances. The defendant in a lawsuit for medical malpractice is the health professional. This could be a nurse, doctor or therapist, or any other licensed health care professional.

Expert testimony is often required in malpractice cases. Medical experts are required to be able to testify that the doctor did what was required of medical care within their specific area of expertise. They also have to testify to the damage caused by the doctor’s actions or inactions.

The consequences of negligence and medical malpractice mistakes can be devastating. For instance, a misdiagnosis of a health problem could have life-threatening effects. Other types of injuries include operating on the wrong body part or leaving instruments inside the patient during surgery.

To establish a malpractice claim the patient has to prove four legal elements: a duty that the doctor owed them; a breach of this duty; a subsequent injury; and damages. In some states, like New York, the law places a limit on the amount that can be awarded for an action for malpractice.

Causation

The injury element is called the causation. It is one of most important aspects in a medical malpractice claim. To prove causation, a plaintiff must demonstrate that they sustained their injury on a balance of probabilities because of the negligence of a physician. This is a challenging task for several reasons.

For instance, a lot of injuries that are the basis of a medical malpractice lawsuit stem from long-term or ongoing illnesses that were present before treatment began. Often the statute of limitations for a claim involving medical malpractice extends over a number of years, and injuries may develop slowly.

In these cases it is necessary to prove that a medical professional's failure to adhere to the standard of care which led to the injury is not easy. The attorney could have gathered evidence, such as expert testimony and medical records that the injured person can utilize.

During the discovery process, which is an integral part of the legal procedure getting ready for trial, your lawyer can request disclosure of expert testimony as well as other documents from lawyers of the defendants. The doctor who is representing the case will be asked to take a deposition. This is a statement that is made under the oath. Your lawyer is able to cross-examine doctor and challenge their conclusions. The jury will then decide if the plaintiff has proven the essential elements of their case, including obligation, breach, causation and injury.

Negligence

When a medical negligence claim is filed in court, the plaintiff must to convince the jury that it was more likely than not that the physician did not perform his or her professional duties and that the breached duties caused injuries. The plaintiff's lawyer has to show this through evidence gathered through pretrial discovery, which involves the disclosure of documents, including medical records from all parties involved in the lawsuit. Depositions, in which the statements are made under oath, and recorded to be used at trial, are also part of this procedure.

A doctor was in breach of his or her professional obligation if he or she did something that a reasonable prudent physician would not do under the same circumstances. However it must be proven that the breach directly caused the injury to the patient. This is referred to as causation or proximate causes. For example an individual goes to the hospital for a hernia procedure and then has his or her gall bladder removed instead. This is medical malpractice since the removal of the gall bladder did not benefit the patient.

Medical malpractice lawsuits must be brought within a legally-defined period of time, referred to as the statute of limitations, which varies according to the state. The injured patient has to prove that the negligent treatment caused injury, and they have to prove the amount of compensation they're entitled to.

Damages

You deserve to be compensated for any injuries that you've suffered as a result of medical negligence. At Scaffidi & Associates, we will assist you in receiving an adequate and fair amount of compensation for your loss.

The first step in a lawsuit is to make a complaint and serve it as well as summons and other documents on all defendants. The parties then proceed to discovery, a process by which documents and statements are revealed under an oath. During discovery, medical records and notes from a doctor will usually be requested.

In most states, you have to demonstrate four elements in order to be compensated for injuries incurred by medical malpractice which includes a duty to the healthcare provider in breach of that duty; a causal relationship between the breach and the patient's injury and damages resulting from the injury. If your lawyer can prove all of these elements, you will have an argument for financial recovery in a medical malpractice case.

In some cases the court could award punitive damage that is designed to penalize a wrongdoer and discourage others from committing similar acts. However, this isn't the norm in medical malpractice cases because the courts require evident proof of malice in order to award these awe-inspiring awards.