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How to File a Medical Malpractice Case

If a patient discovers that an object foreign to the body, such as surgical clamps, remains in her body after gall bladder surgery could file a medical malpractice lawsuit. A successful lawsuit must prove the legal elements of medical negligence: duty, deviation from this obligation, direct cause and injury.

It is vital for our clients to establish a direct relationship between the breach of duty and the damage called proximate causation.

Cause of Injury

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

Expert testimony is often required in cases of malpractice. Medical experts must be able to prove whether or not the health care provider adhered to the standards of treatment in their specific field. They also have to testify to the harm that was caused by the doctor's actions or inactions.

Injuries resulting from malpractice and negligence can be quite severe. A mistake in diagnosis can have devastating consequences, such as life-threatening conditions. Other types of injuries could include operating on the wrong body part or leaving instruments inside the patient during surgery.

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

Causation

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

A lot of the injuries that form the basis for a medical negligence lawsuit result from chronic issues that existed before treatment began. The statute of limitations on a medical malpractice lawsuit can be extended over a period of time and injuries may develop slowly.

In these cases it is necessary to prove that a medical professional's breach of the standard of care which led to the injury can be difficult. However, the patient who is afflicted could be able to make use of evidence gathered by the attorney, including medical documents and expert testimony.

During the discovery process, which is part of the legal process for prepping for trial, your lawyer could request disclosure of expert testimony and other evidence from defense attorneys of the defendants. The doctor who is defending the case will be asked to appear in a deposition. This is a declaration that is given under the oath. Your lawyer can challenge the doctor's findings and cross-examine them. The jury will decide then if the plaintiff has proven the essential elements of their claim, which includes the duty of care, breach, causation and injury.

Negligence

The plaintiff must convince the jury, when bringing a claim for medical malpractice that it is more likely that the doctor acted in violation of his or her obligations as physician and that the actions led to injury. The attorney representing the plaintiff must demonstrate this through evidence gathered during discovery. This involves seeking documents, such as medical records, from all parties involved in a lawsuit. Depositions, in which statements are made under oath, and recorded for use at trial, are also part of this procedure.

A doctor has violated their professional obligation by doing something that an ordinary prudent doctor would not have done under similar circumstances. It must be established that the breach resulted in injury directly to the patient. This is called causation or the proximate cause. A patient might go to the hospital to repair a hernia and instead, have their gall bladder removed. This is medical malpractice as the removal of the gall bladder was not beneficial to 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 victim must demonstrate that the treatment was substandard and caused injury, then they have to prove the amount of compensation they're entitled to.

Damages

If medical negligence has caused you to sustain an injury, you have the right to be made whole. At Scaffidi & Associates, we can help you receive the full and fair compensation you deserve for your losses.

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

In most states, you must prove four things to be compensated for the injuries caused by medical malpractice such as a duty due to the healthcare provider in breach of that duty; a causal link between the breach and the injury suffered by the patient and damages resulting from the injury. If your lawyer can prove all of these elements, you have an argument for financial compensation in a medical malpractice claim.

In certain cases the court can give punitive damages, which are intended to penalize the culprit and deter others from engaging in similar misconduct. This isn't often however, in medical malpractice lawyers malpractice cases. The courts must have a clear evidence of malice before they may make these extraordinary awards.