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How to File a Medical Malpractice Case

A patient who discovers that an object foreign to the body like surgical clamps, is still inside her body following gall bladder surgery can be able to file a lawsuit for medical malpractice attorney malpractice. A successful claim must establish the legal aspects of medical negligence: duty, deviance from this duty, direct cause, and injury.

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

Cause of Injury

A medical malpractice claim may be filed either by the person who was injured or an attorney. This can be the spouse or adult child, parent, guardian or administrator of a deceased patient's estate, based on the circumstances. The plaintiff in a lawsuit for medical malpractice is the health professional. It could be an accredited nurse, doctor or therapist.

Expert testimony is often required in cases of malpractice. Medical experts are required to testify whether or not the health care provider was in compliance with the standard of care in their specific field. They must also testify to the damage caused by the actions or inactions of a doctor.

Injury caused by negligence and mistakes can be catastrophic. A misdiagnosis could have grave consequences, like the possibility of a life-threatening illness. Other types of injuries include operating on the incorrect body part or leaving surgical instruments inside the patient.

The patient must establish four legal elements in a malpractice case the duty owed to the patient by the physician and a breach of this obligation; a harm caused by the breach; and the resulting damages. In certain states, such as New York, the law places a limit on the amount of money that can be awarded for a malpractice claim.

Causation

The injury element, also referred to as causation, is one the most important aspects of a medical malpractice case. To prove causation the plaintiff must prove that they suffered an injury on the basis of probabilities due to of the negligence of the doctor. This is a challenging task for several reasons.

For instance, many of the injuries that are the basis of a medical malpractice lawsuit stem from long-term, or ongoing ailments that were in the process of being treated prior to. The time-limit for a medical malpractice case could be extended for a number of years and injuries can develop slowly.

In these cases it is often difficult to prove that one particular medical professional's violation of the standard of care caused the injury. However, the patient who is afflicted could be able to use the evidence collected by the attorney, including medical records and expert testimony.

During the discovery process, which is a part of the legal procedure for preparing for trial, your lawyer may request disclosure of expert testimony and other documents from the lawyers of the defendants. The doctor who is representing the case will be required to take deposition. This is a statement that is made under an oath. Your lawyer can cross-examine the doctor and contest their findings. The jury will then decide whether the plaintiff has proved the essential elements of their claim, which includes duty, breach, causation and injury.

Negligence

When a medical malpractice claim is filed the plaintiff has to convince the jury that it was more likely than not that the doctor committed a breach of professional duties and that the breaches caused injury. The plaintiff's lawyer must demonstrate this with evidence gathered through pre-trial discovery, which involves seeking disclosure of documents, which includes medical records from all parties involved in the lawsuit. The process also involves sworn statements that are recorded and used in trial.

A doctor was in breach of his or her professional obligations when he/she did something that a prudent doctor would not do under similar circumstances. However it must be proved that the breach directly caused injury to the patient. This is known as causation or proximate cause. For example, a patient goes to the hospital for a hernia surgery and ends up having his or his gall bladder removed instead. This is medical negligence as the removal was not beneficial for the patient.

Medical malpractice lawsuits must be filed within a specific legal period, referred to as the statute of limitations. This varies from state to state. The patient who was injured must show that the inadequate treatment caused injury, then they have to prove the amount of compensation they're entitled to.

Damages

If medical negligence caused you to suffer an injury, you deserve to be made whole. At Scaffidi & Associates, we can assist you in obtaining the full and fair compensation you deserve 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 procedure which involves the disclosure of documents and statements presented under an oath. During discovery, medical records and doctor's notes will usually be requested.

In most states, you have to demonstrate four elements in order to be compensated for injuries caused by medical malpractice that is a duty owed by the healthcare provider and a breach of the duty; a causal link between the breach and the patient's injury as well as damages that result from the injury. If your lawyer can prove all of these elements, you can make a a strong case for financial compensation in a medical malpractice case.

In some cases the court can give punitive damages that is intended to punish the perpetrator and discourage others from committing similar conduct. This is not the norm however, particularly in medical malpractice cases. The courts must be able to prove evidence of malice before they can decide to award these extraordinary damages.