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How to File a Medical Malpractice Case

A patient who discovers an object foreign to her, such as surgical clamps, remain inside her body after gall bladder surgery could file a medical malpractice lawsuit. A successful lawsuit must establish the elements of medical malpractice: duty, deviation from the duty, and direct reason.

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

Causes of Injury

A medical malpractice claim can be filed by the injured patient or by a person legally appointed to represent them. Based on the specific circumstances, this could be a spouse of the patient or an adult child, parent, a guardian ad-litem or administrator or executor of the estate of the patient who died. In a case of medical malpractice the defendant is the health care provider. This could be a nurse, doctor, therapist or any other health care professional.

Malpractice cases typically involve many expert witnesses. Medical experts are required to provide evidence to prove that the medical professional did what was required of care in his or her specific area of expertise. They must also testify to the harm caused by the doctor’s actions or inactions.

Injuries caused by negligence and mistakes can be devastating. A misdiagnosis could have grave consequences, such as an illness that could be life-threatening. Other types of injuries could include operating on the wrong body part or putting instruments inside the patient during surgery.

The patient must prove four legal elements of a malpractice claim that include a duty owed to the patient by the physician and a breach of this obligation; a harm 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 also known as the causation. It is one of the most crucial aspects of a medical malpractice claim. To prove causation, a plaintiff must show that they sustained their injury on a balance of probabilities because of the negligence of a physician. This can be a challenging task due to several reasons.

Many of the injuries that form the basis of a medical negligence suit result from long-term conditions or ongoing conditions which were present before treatment began. Often, the statute of limitations for a medical malpractice lawsuit extends over a number of years, and injuries can develop gradually.

In these instances, proving that a medical professional's violation of the standard of care that led to the injury is not easy. The attorney could have gathered evidence, such as medical records and expert testimony that the patient who was injured may use.

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

Negligence

The plaintiff must convince jurors, when bringing a lawsuit for medical malpractice in court, that it is more than likely that the doctor violated the obligations of a physician and that those violations caused injury. The plaintiff's lawyer must demonstrate this through evidence gathered during pretrial discovery. This involves soliciting documents, including medical records and other records from all parties in the lawsuit. This process also involves swearing statements that are recorded and used in trial.

A doctor has violated their professional obligation when they did something that an ordinary prudent doctor would not have done under similar circumstances. However, it must be proven that the breach directly caused injury to the patient. This is known as causation or proximate causes. Patients may visit the hospital to have a hernia fixed, and instead, have their gall bladder removed. This is medical negligence as the procedure did not benefit the patient.

Medical malpractice lawsuits must be filed within a specific legal time limit, known as the statute of limitations. This differs from state-to-state. The victim must demonstrate that the treatment was substandard and resulted in injury, and after that they must establish what compensation they're entitled to.

Damages

If medical negligence has caused you to suffer a traumatic injury, you should be made whole. Scaffidi & Associates can help you receive fair and full 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 which involves the disclosure of documents and statements disclosed under the oath. Medical records and the notes of the doctor are typically sought during discovery.

In the majority of states, to receive compensation for injuries caused through malpractice, you need to prove four things such as a duty of care that is due to the healthcare provider, a breach of this duty; a causal link between the breach and injury; and damages caused by the injury. If your attorney can establish all of these elements, you will have an extremely strong case for financial recovery in a medical malpractice case.

In some instances, a court may make punitive damages available, which are intended to penalize the perpetrator and discourage others from engaging in similar conduct. This is rare however, in medical malpractice cases. The courts must be able to prove evidence of malice before they can award these extraordinary damages.