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How to File a Medical Malpractice Case

A patient who discovers a foreign object, such as surgical clamps, remains inside her body after gall bladder surgery could file a medical malpractice lawsuit. A successful claim must establish the legal elements of medical negligence: duty, deviation from this duty, direct cause and injury.

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

The reason for injury

A medical malpractice claim may be filed either by the victim or a legal representative. Depending on the circumstances this could be the spouse of the patient or an adult child, parent, a guardian ad litem, or the administrator or executor of the estate of the deceased patient. The plaintiff in a medical malpractice lawsuit is the health professional. This could be a licensed doctor, nurse or therapist.

Expert testimony is often required in malpractice cases. Medical experts are required to determine if the doctor did what was required of treatment in their specific area of expertise. They must also testify to the harm caused by the actions or inactions of a doctor.

Injuries caused by negligence and negligence can be very serious. For example, a mistake in the diagnosis of a health condition can result in life-threatening consequences. Other types of injuries be caused by operating on an incorrect body part or putting surgical instruments in the patient.

In order to prove a malpractice claim the patient must prove four legal elements: a duty that the physician owed to them; a breach in this duty; a resultant injury and damages. In certain states, like New York, the law restricts the amount that can be awarded in an action for malpractice.

Causation

The injury element, also known as causation, is among the most important elements of medical malpractice cases. To prove causation the plaintiff must show that they suffered their injury on a balance of probabilities due to of the physician's negligence. This can be a difficult job due to a variety of reasons.

Many of the injuries that form the basis for a medical negligence suit result from chronic conditions which were present before treatment began. Often, the statute of limitations for a claim involving medical malpractice is extended over a period 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 and led to the injury is a challenge. However, the person who was harmed might be able use evidence gathered by the attorney, including medical documents and expert testimony.

During the discovery procedure which is an element of the legal process preparing for a trial, your lawyer can request the lawyers of the defendants provide expert testimony and other documents. The doctor who is representing the case will be asked to take a deposition. This is a testimony which is under an oath. Your lawyer may challenge the doctor's findings and cross-examine them. The jury will decide whether the plaintiff has substantiated that the allegations of the case are true which include breach of duty, breach and causation.

Negligence

The plaintiff must convince jurors, when bringing a claim for medical malpractice in court, that it is more likely that the doctor did not fulfill his or her duties as medical professional and that these mistakes led to injuries. The plaintiff's lawyer must prove this using evidence gathered through pretrial discovery, which involves the disclosure of documents, including medical records from all parties who are involved in the lawsuit. This process also involves swearing statements that are recorded and used at trial.

A doctor has violated his or her professional obligations in the event that he or her did something that a prudent doctor would not do in 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 the proximate cause. For instance an individual goes to the hospital for a hernia operation and ends up having his or the gall bladder removed instead. This is medical malpractice because the removal of the gall bladder was not beneficial to the patient.

Medical malpractice suits must be filed within the legal period, referred to as the statute of limitations. This is different from state to state. The injured patient has to show that the inadequate treatment caused injury, and they have to prove the amount of compensation they deserve.

Damages

If medical negligence has caused you to suffer injury, you are entitled to be made whole. At Scaffidi & Associates, we will assist you in receiving the 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 participate in discovery. It is a process where documents and evidence are disclosed under the oath. Medical records and the notes of the doctor are typically sought during discovery.

In the majority of states, you need to prove four things to be compensated for the injuries caused by medical malpractice law firms malpractice which includes a duty to the healthcare provider; a breach of that duty; a causal link between the breach and the injury suffered by the patient; and damages that flow from the injury. If your attorney can establish all of these elements, then you've got an argument for financial recovery in a claim for medical malpractice.

In some instances the court can give punitive damages, which are intended to punish the perpetrator and discourage others from engaging in similar conduct. But, this isn't often the case in medical malpractice cases, since courts require evident proof of malice in order to make these extraordinary awards.