How to File a Medical Malpractice Case

If a patient discovers that an object foreign to the body like surgical clamps, remain inside her body after gall bladder surgery could bring a medical malpractice lawsuit. A successful claim must prove the elements of medical negligence: duty, deviation from the norm and direct reason.

It is important for our clients to establish a direct link between the breach of duty and the damage which is referred to as proximate cause.

Causes of Injury

A claim for medical malpractice can be filed either by the person who suffered the injury or a legal representative. It could be the spouse, adult child or parent, guardian or administrator of the estate of a deceased patient depending on the specific circumstances. The defendant in a lawsuit for medical malpractice is the health professional. This could be a nurse, doctor, therapist or any other health care professional.

Expert testimony is often required in cases of malpractice. Medical experts are required to testify whether or whether the health professional adhered to the standards of care for their particular field. They must also testify as to the harm that was caused by the doctor’s actions or inactions.

Injuries resulting from malpractice and negligence can be very severe. For instance, a wrong diagnosis of a health condition can have life-threatening effects. 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 which include a duty to the patient by the doctor Vimeo and a breach of this duty; an injury caused by the breach; and the consequential damages. In some states such as New York the law limits the amount of money that can be awarded in a case of malpractice.

Causation

The injury element is known as the causation. It is among the most crucial aspects of a medical malpractice claim. To establish causation, the plaintiff must prove that they sustained their injury on the balance of probabilities as a result of the negligence of the doctor. This is a difficult task due to a variety of reasons.

Many of the injuries that form the basis for medical negligence lawsuits result from long-term conditions or ongoing illnesses that existed before treatment started. Often, the statute of limitations for a medical malpractice claim is extended over a period of years and the injuries may develop slowly.

In these cases it is difficult to prove that a medical professional's failure to adhere to the standard of care that led to the injury is not easy. The attorney could have collected evidence, like medical records and expert testimony, that the injured patient can use.

During the discovery process, which is part of the legal procedure getting ready for trial, your lawyer can seek disclosure of expert testimony and other documents from lawyers of the defendants. The doctor who is representing the case will be asked to give deposition. This is a testimonies that's given under an oath. Your lawyer may cross-examine the doctor and contest the doctor's findings. The jury will decide whether the plaintiff has substantiated the facts of the case which include breach of duty, breach and causation.

Negligence

When a medical malpractice claim is filed, the plaintiff will have to convince the jury that it was more likely than not that the physician did not perform his or her professional obligations and that those violations caused injuries. The attorney representing the plaintiff must prove this by using evidence obtained during discovery. This involves requesting documents, including medical records, from all parties involved in the lawsuit. This process also involves sworn declarations that are recorded and used in trial.

A doctor has violated the professional duties of a doctor when he/she did something that a prudent physician would not do in similar circumstances. It must be established that the breach caused injury directly to the patient. This is known as causation or Vimeo proximate causes. A patient might visit a hospital to have a hernia repaired, but end up having their gall bladder removed. This is medical negligence because the procedure did not benefit the patient.

Medical malpractice lawsuits must be filed within a legally-defined period of time, also known as the statute of limitations which is different for each state. The patient who is injured must prove that the negligence resulted in injury, and then he or she must prove the amount of financial compensation he or she is entitled to.

Damages

If a medical error has caused you to suffer a traumatic injury, you have the right to be compensated. Scaffidi & Associates can help you receive fair and full compensation for your losses.

The first step is filing and serving the complaint and summons to all defendants named in the lawsuit. The parties then proceed to discovery, a process in which documents and statements are disclosed under an oath. During discovery medical records and notes from a doctor will typically be sought.

In many states, to receive compensation for injuries caused by malpractice, you need to establish four elements: a duty of care that the healthcare provider is obligated to perform, a breach of this duty; a causal link between the breach and injury and damages caused by the injury. If your lawyer can demonstrate all of these aspects of a medical negligence claim, you'll have an enviable case.

In some cases the court could decide to award punitive damages, which is meant to punish the wrongdoer and discourage others from committing similar misconduct. This is not the norm however, especially in medical malpractice cases. The courts must have very clear evidence of malice before they can give these extraordinary damages.