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Medical Malpractice Lawsuits

Attorneys hold a fiduciary relationship with their clients and are expected to conduct themselves with diligence, care and ability. However, just like any other professional, attorneys make mistakes.

Not all mistakes made by an attorney are a result of malpractice. To prove negligence in a legal sense the person who was hurt must prove duty, breach of duty, causation, and damages. Let's look at each of these components.

Duty-Free

Doctors and medical professionals take an oath that they will use their skills and experience to cure patients, not causing further harm. The legal right of a patient to receive compensation for injuries resulting from medical malpractice is based on the notion of duty of care. Your attorney can determine if your doctor's actions breached the duty of medical care and if those breaches resulted in injury or illness.

Your lawyer must establish that the medical professional you hired owed the duty of a fiduciary to perform with reasonable competence and care. This relationship can be established by eyewitness testimony, physician-patient documents and expert testimony from doctors who have similar educational, experience and training.

Your lawyer will also need to establish that the medical professional violated their duty to care in not adhering to the accepted standards in their field. This is often called negligence. Your attorney will evaluate the defendant's conduct to what a reasonable individual would do in the same situation.

Your lawyer must show that the defendant's breach of duty directly resulted in the loss or injury you suffered. This is called causation. Your lawyer will use evidence, such as your doctor/patient records, witness testimony, and expert testimony, to prove that the defendant’s failure to meet the standards of care was the sole cause of your injury or loss to you.

Breach

A doctor owes patients duties of care that adhere to the standards of medical professional practice. If a physician fails to live up to those standards and the failure results in injury, then medical malpractice and negligence may occur. Typically, expert testimony from medical professionals with similar qualifications, training or certifications will assist in determining what the minimum standard of care is in a particular circumstance. Federal and state laws, along with institute policies, help define what doctors are expected to do for certain types of patients.

To win a malpractice claim, it must be proven that the doctor violated his or her duty to care and that this violation was the direct cause of an injury. In legal terms, this is known as the causation factor and it is essential to establish. If a doctor needs to conduct an x-ray examination of a broken arm, they have to put the arm in a casting and correctly set it. If the doctor fails to perform this, and the patient suffers a permanent loss in use of the arm, then malpractice may be at play.

Causation

Attorney malpractice attorneys claims are based on the evidence that proves that the lawyer's mistakes caused financial losses to the client. For instance, if a lawyer fails to file a lawsuit within the prescribed time of limitations, leading to the case being lost for ever, the injured party could bring legal malpractice lawsuits.

However, it's crucial to be aware that not all errors made by lawyers are a sign of mistakes that constitute malpractice. Mistakes in strategy and planning are not generally considered to be malpractice and lawyers have lots of freedom to make judgement calls so long as they're reasonable.

The law also gives attorneys an enormous amount of discretion to not conduct discovery on behalf of clients, so long as the failure was not unreasonable or a result of negligence. Legal malpractice can be caused by not obtaining crucial documents or facts, like medical reports or witness statements. Other examples of malpractice include a inability to include certain claims or defendants for example, like forgetting to include a survival count in a wrongful death case or the continual and extended inability to contact clients.

It is also important to consider the fact that the plaintiff has to prove that if not for the lawyer's negligent conduct, they would have won their case. In the event that it is not, the plaintiff's claim for malpractice will be denied. This requirement makes the process of bringing legal malpractice lawsuits difficult. It is important to employ an experienced attorney.

Damages

To prevail in a legal malpractice case, plaintiffs must show financial losses caused by the actions of the attorney. In a lawsuit, this needs to be proved with evidence, like expert testimony or correspondence between the attorney and the client. In addition the plaintiff has to prove that a reasonable lawyer would have avoided the damage caused by the attorney's negligence. This is called proximate causation.

Malpractice can occur in many different ways. Some of the most common malpractices include: failing a deadline or statute of limitations; not conducting the necessary conflict checks on cases; applying law improperly to a client's situation; or breaking the fiduciary duty (i.e. the commingling of funds from a trust account with the attorney's own accounts as well as failing to communicate with the client are all examples of malpractice.

In most medical malpractice cases the plaintiff will seek compensation damages. These compensate the victim for the expenses out of pocket and losses, like medical and hospital bills, the cost of equipment that aids in recovering, and lost wages. Additionally, victims may be able to claim non-economic damages like suffering and malpractice lawsuits suffering as well as loss of enjoyment life and emotional distress.

In many legal malpractice cases there are claims for punitive and compensatory damages. The former compensates a victim for the loss resulting from the negligence of the attorney, whereas the latter is designed to deter future malpractice by the defendant.