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How to File a Medical Malpractice Case

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

It is crucial for our clients to establish a direct causal connection between the breach of duty and the harm which is referred to as proximate cause.

Cause of Injury

A medical malpractice lawsuit can be filed by the victim or a legal representative. Based on the circumstances, this may be the spouse of the patient or an adult child parent, guardian ad-litem or executor or administrator of the estate of the deceased patient. The defendant in a suit for medical negligence is the health professional. This could be a doctor, nurse, therapist or any other licensed health care professional.

Expert testimony is typically required in cases of malpractice. Medical experts are required to testify on whether or whether the healthcare provider adhered to the standards of treatment in their specific field. They must also testify about the harm caused by the doctor's actions or inactions.

The injuries that result from malpractice and negligence can be very severe. For example, a misdiagnosis of a health condition can have life-threatening consequences. Other kinds of injuries include operating on the wrong part or leaving 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 doctor or a breach of the duty; injury caused by the breach and the consequential damages. In some states, such as New York, the law sets a limit on the amount of money that can be awarded for a malpractice claim.

Causation

The element of injury is called the causation. It is among the most crucial aspects in a medical malpractice claim. To establish causation, the plaintiff must prove that their injury was the result of the doctor's negligence. This is a challenging task due to a variety of reasons.

For example, many injuries that are the basis of a medical malpractice lawsuit arise from long-term or ongoing illnesses that were present before treatment began. Often, the statute of limitations for a medical malpractice lawsuit extends out over a number of years, and injuries can develop gradually.

In these cases it is necessary to prove that a medical professional's violation of the standard of care led to the injury is difficult. However, the patient who was hurt may be able to use the evidence collected by the attorney, including medical records and expert testimony.

During the discovery process, which is part of the legal process for prepping for trial, your lawyer will seek disclosure of expert testimony and other documents from the lawyers representing the defendants. The doctor who is defending the case will be required to appear in deposition. This is a testimony that's given under oath. Your lawyer will be able to cross-examine doctor and challenge their findings. The jury will decide if the plaintiff has proven the elements of the case which include breach of duty, breach and causation.

Negligence

If a claim for medical malpractice is filed the plaintiff must to convince the jury that it was more likely than not that the physician violated professional duties and that the breaches resulted in injury. The plaintiff's lawyer must prove this using evidence gathered through pretrial discovery, which involves asking for disclosure of documents such as medical records from all parties involved in the lawsuit. The 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 in similar circumstances. However, it must be proven that the breach directly caused the injury to the patient. This is referred to as causation, or the proximate cause. A patient may visit the hospital to have a hernia repaired, but end up having their gall bladder removed. This is medical negligence since the procedure was not beneficial to the patient.

Medical malpractice lawsuits must be brought within a legally defined period of time, referred to as the statute of limitations that varies from state to state. The person who has suffered injury must prove that the substandard care caused injury, and then he or she must prove the amount of financial compensation he or she deserves.

Damages

You are entitled to compensation for any injuries you have suffered due to medical malpractice law firms negligence. Scaffidi & Associates can help you receive full and fair 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 presented under an oath. During discovery, medical records and notes from a doctor will typically be sought.

In most states, you must demonstrate four elements in order to be compensated for the injuries caused by medical malpractice such as a duty due to the healthcare provider and a breach of the duty; a causal link between the breach and the injury suffered by the patient and damages resulting from the injury. If your attorney can demonstrate all of these aspects of a medical negligence claim, you will have a strong case.

In some cases, a court may award punitive damages, which are intended to punish the perpetrator and discourage others from engaging in similar conduct. This is not the norm however, particularly in medical malpractice cases. The courts must have a clear evidence of malice before they may award these extraordinary damages.