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How to File a Medical Malpractice Case

A patient who discovers that an object foreign to the body, such as surgical clamps, remains inside her body following gall bladder surgery could file a medical malpractice lawsuit. A successful lawsuit must prove 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 link between the breach of duty and the injury which is referred to as proximate cause.

Causes of Injury

A medical malpractice case can be filed by the person who has been injured or a person who is legally authorized to represent them. This can be the spouse, adult child guardian, parent or administrator of an estate belonging to a deceased patient depending on the specific circumstances. The defendant in a medical malpractice lawsuit is the health care provider. This could be a nurse, doctor or therapist, or any other health professional.

Malpractice cases typically involve an abundance of expert testimony. Medical experts must testify as to whether the health care provider acted within the standard of care in his or her specific field of expertise. They also have to testify about injuries caused by physician's actions or inactions.

The consequences of malpractice and negligence can be very serious. For instance, a wrong diagnosis of a health problem could have life-threatening effects. Other types of injuries could include performing surgery on the wrong body part or leaving instruments inside the patient during surgery.

The patient must prove four legal elements in a malpractice case the duty owed to the patient by the doctor and a breach of this duty; injury caused by the breach; and resulting damages. In certain states, such as New York the law limits the amount of money awarded for a malpractice case.

Causation

The injury element is also called the causation. It is one of most important aspects of a medical malpractice claim. To establish causation, the plaintiff must prove that their injury was the result of the doctor's negligence. This can be a challenging job due to various reasons.

For instance, many injuries that are the basis of a medical malpractice attorneys malpractice lawsuit are the result of long-term or ongoing illnesses that were present prior to the time of treatment. The time period for medical malpractice filing a medical malpractice lawsuit can be extended over several years, and injuries can develop slowly.

In these cases it is necessary to prove that a medical professional's violation of the standard of care which led to the injury is a challenge. The attorney could have gathered evidence, such as expert testimony and medical records that the patient who was injured could use.

During the discovery process, which is part of the legal procedure preparing for trial, your lawyer can ask for the disclosure of expert testimony as well as other documents from defense attorneys of the defendants. The doctor who is defending the case will be required to take a deposition. This is a testimony that is made under oath. Your lawyer can challenge doctor's findings and cross-examine them. The jury will then decide if the plaintiff has established the necessary elements of their case including the duty of care, breach, causation and injury.

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 breached his or her professional obligations and that those violations caused injury. The plaintiff's lawyer must prove this using evidence gathered through pretrial discovery, which includes asking for disclosure of documents such as medical records from all parties who are involved in the lawsuit. Depositions, in which statements are made under oath, and recorded to be used at trial, are also part of this process.

A doctor has violated the professional duties of a doctor when he/she did something that a reasonably prudent physician would not do under similar circumstances. It must be proven that the breach caused the injury directly to the patient. This is referred to as causation, or the proximate cause. A patient might visit a hospital to repair a hernia however, they end up having their gall bladder removed. This is medical malpractice since 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 differs from state-to-state. The person who has suffered injury must prove that the substandard care caused injury and then he or she must show how much compensation he or she deserves.

Damages

You are entitled to compensation for any injuries you've suffered due to medical negligence. Scaffidi & Associates can help you get fair and complete compensation for your losses.

The first step in a lawsuit is to make a complaint and serve it along with summons and other papers on all defendants. The parties engage in discovery. This is a process where documents and evidence are disclosed under the oath. During discovery medical records and doctor's notes will usually be requested.

In most states, you have 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 connection between the breach and the patient's injury as well as damages that result from the injury. If your attorney can establish all of these elements, then you've got an excellent case for financial recovery in a medical malpractice law firms malpractice claim.

In some instances the court could award punitive damage that is intended to punish a wrongdoer, and deter others from engaging in similar crimes. This isn't often however, in medical malpractice cases. The courts must have clear evidence of malice before they can make these extraordinary awards.