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How to File a Medical Malpractice Case

A patient who finds that a foreign object like surgical clamps, remain inside her body following gall bladder surgery could pursue a medical malpractice suit. A successful claim has to prove the elements of medical negligence: duty, deviation from the duty, and direct reason.

It is vital for our clients to establish a direct connection between the breach of duty and the harm, known as proximate causation.

Cause of Injury

A medical malpractice claim may be filed either by the person who suffered the injury or a legal representative. This can be the spouse, adult child or parent, guardian or administrator of a deceased patient's estate, based on the circumstances. The defendant in a medical malpractice lawsuit is the health care provider. It could be an accredited nurse, doctor or therapist.

Expert testimony is usually required in malpractice cases. Medical experts must be able to prove whether or whether the healthcare provider followed the standard of care for their particular area of expertise. They also need to testify on the injury that was caused by the doctor's actions or inactions.

Injuries resulting from malpractice and negligence can be very serious. For instance, a wrong diagnosis of a health issue could cause life-threatening complications. Other kinds of injuries include operating on the wrong part or leaving instruments inside the patient during surgery.

In order to prove a malpractice case the patient must prove four legal elements: a duty that the physician owed to them; a breach of this duty; a resultant 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 among the most important aspects in a medical malpractice claim. To establish causation, the plaintiff must demonstrate that their injury was caused by a physician's negligence. This can be a difficult job due to various reasons.

For instance, many injuries that are the cause of a medical negligence lawsuit arise from long-term or ongoing conditions that were already present prior to the time of treatment. The statute of limitations on a medical malpractice case could be extended for a number of years, and injuries can develop slowly.

In these instances, it is difficult to prove that one particular medical professional's violation of the standard of care caused the injury. However, the patient who was hurt might be able use evidence gathered by the attorney, such as medical records and expert testimony.

During the discovery process, which is a part of the legal procedure for preparation for trial, your lawyer can request disclosure of expert testimony and other documents from the defense attorneys of the defendants. The doctor who is defending the lawsuit is then asked to give evidence during deposition, which is testimony under oath. Your lawyer is able to cross-examine doctor and challenge the doctor's findings. The jury will then decide if the plaintiff has proven the necessary elements of their case, including duty, breach, causation and injury.

Negligence

The plaintiff must convince jurors, when filing a claim for medical malpractice, that it is likely that the doctor violated his or her duties as a doctor and that these actions led to injury. The plaintiff's attorney must demonstrate this using evidence gathered during pretrial discovery. This involves soliciting documents, including medical records and other records from all parties in a lawsuit. This also includes the recording of sworn statements and used at trial.

A doctor was in breach of the professional duties of a doctor when he or she did something that a reasonably prudent doctor would not do in the same circumstances. It must be proven that the breach resulted in injury directly to the patient. This is referred to as causation or proximate cause. For instance when a patient is taken to the hospital for a hernia surgery and is then able to have his or her gall bladder removed instead. This is medical malpractice because the removal of the gall bladder was not beneficial to the patient.

Medical malpractice lawsuits must be brought within a legally regulated period of time, referred to as the statute of limitations that varies from state to state. The injured patient must establish that the negligence resulted in injury, and then he or she must show how much compensation they are entitled to.

Damages

If medical negligence has caused you to suffer an injury, you should be compensated. At Scaffidi & Associates, we can assist you to receive an adequate and fair amount of compensation for your loss.

The first step is to file and serve the complaint and summons to all defendants named in the lawsuit. The parties then begin discovery, medical Malpractice lawsuits a process by which documents and statements are revealed under oath. During discovery medical records and doctor's notes will typically be sought.

In the majority of states, you need to prove four things in order to be compensated for injuries incurred by medical malpractice: a duty owed by the healthcare provider and a breach of that duty; a causal relationship between the breach and the injury suffered by the patient and damages resulting from the injury. If your lawyer can demonstrate all of these elements in a medical negligence claim, you will have an impressive case.

In certain instances, Medical malpractice lawsuits a court may make punitive damages available, which are intended to punish the perpetrator and discourage others from committing the same offense. This isn't often, however, in medical malpractice cases. The courts must be able to prove evidence of malice before they are able to award these extraordinary damages.