How to File a Medical Malpractice Case

A patient who finds that an object foreign to her like surgical clamps, remains inside her body after gall bladder surgery could file a medical malpractice lawsuit. A successful claim has to prove the elements of medical malpractice: duty, deviation from this duty and direct cause.

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

Cause of Injury

A medical malpractice attorney negligence case may be filed by the injured person or a person legally designated to act on their behalf. Depending on the circumstances this could be a spouse of the patient, an adult child or parent, a guardian ad litem or the executor or administrator of the estate of the patient who died. The defendant in a lawsuit for medical malpractice is the health professional. It could be a licensed doctor, nurse or therapist.

Expert testimony is often required in malpractice cases. Medical experts must be able to prove whether or the medical professional adhered to the standards of care for their particular field. They also have to testify about injuries caused by physician's actions or inactions.

Accidents caused by negligence or mistakes can be devastating. An incorrect diagnosis can lead to serious consequences, such as the possibility of a life-threatening illness. Other types of injuries include operating on the wrong part or putting instruments inside the patient during surgery.

The patient must establish four legal elements in a malpractice case the duty owed to the patient by the physician; a breach of this duty; injury caused by the breach; and the resulting damages. In certain states, like New York the law limits the amount of money that can be awarded for a malpractice claim.

Causation

The injury element is known as the causation. It is one of most important aspects of a medical malpractice claim. To establish causation the plaintiff must demonstrate that their injury was caused by 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 medical negligence lawsuits result from long-term illnesses or conditions which were present before treatment started. The time period for filing a medical malpractice case could be extended for a number of years and the development of injuries can happen slowly.

In these cases it is often difficult to prove that a particular medical professional's violation of the standards of care caused the injury. However, the patient who was hurt could be able to make use of the evidence gathered by the attorney, including medical records and expert testimony.

During the discovery process, which is a part of the legal process for prepping for a trial your lawyer may request that 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 testify in deposition. This is a statement that is given under an oath. Your lawyer can cross-examine the doctor and challenge their findings. The jury will decide if the plaintiff has proven all the elements of the case which include breach of duty, breach and causation.

Negligence

When a medical negligence claim is filed the plaintiff has to convince the jury that it was more likely than not that the physician committed a breach of professional duties and that those breaches resulted in injuries. The attorney representing the plaintiff must prove this by using evidence collected during discovery. This includes seeking documents, such as medical records from all parties involved in the lawsuit. This process also includes the recording of sworn statements and used in trial.

A doctor was in breach of his or her professional obligation when he/she did something that a reasonably prudent physician would not do under similar circumstances. It must be proven that the breach resulted in injury directly to the patient. This is referred to as causation or proximate cause. A patient may visit the hospital to have a hernia repaired, and instead, have their gall bladder removed. This is medical negligence since the removal was not beneficial for the patient.

Medical malpractice lawsuits must be brought within a legally-defined period of time, referred to as the statute of limitations, which is different for each state. The victim must demonstrate that the treatment was substandard and resulted in injury, and after that they have to prove the amount of compensation they are entitled to.

Damages

You should be compensated for any injuries you've suffered as a result of medical negligence. Scaffidi & Associates can help you receive a fair and complete compensation for your losses.

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. This is where documents and evidence are made public under an oath. During discovery, medical records and doctor's notes are usually requested.

In the majority of states, to be eligible for compensation for injuries incurred by malpractice, you have to establish four elements such as a duty of care that is due to the healthcare provider and a breach of that duty; a causal link between the breach and injury; and damages caused by the injury. If your attorney can demonstrate all of these aspects of a medical negligence claim, you'll have a strong case.

In certain cases the court could make punitive damages a possibility that is intended to punish the wrongdoer and deter others from engaging in similar conduct. It is not common however, malpractice particularly in medical malpractice cases. The courts must have a clear evidence of malice before they may give these extraordinary damages.