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How to File a Medical Malpractice Case

A patient who finds that a foreign object, such as surgical clamps, remain inside her body after gall bladder surgery could pursue a medical malpractice attorneys malpractice suit. A successful claim must demonstrate the elements of medical malpractice: duty, deviance from the norm and direct cause.

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

The reason for injury

A claim for medical malpractice can be filed either by the injured person or a legal representative. It could be the spouse, adult child or parent, guardian or administrator of a deceased patient's estate, depending on the circumstances. In a case involving medical malpractice, the defendant is the health care provider. This could be an accredited nurse, doctor or therapist.

Malpractice cases usually require the testimony of experts. Medical experts must testify as to whether the healthcare provider did what was required of treatment in their specific field of expertise. They must also testify as to the harm that was caused by the doctor's actions or inactions.

The consequences of negligence and negligence can be very serious. For instance, a wrong diagnosis of a medical condition could result in life-threatening consequences. Other types of injuries could include operating on the wrong part or putting instruments inside the patient during surgery.

The patient must prove four legal elements in a malpractice claim which include a duty to the patient by the doctor; a breach of this duty; injury caused by the breach; and the resulting damages. In some states, like New York, the law puts a limit on amount that can be awarded for the malpractice claim.

Causation

The injury element, also referred to as causation is one of the most important elements in medical malpractice cases. To prove causation the plaintiff must show that they suffered their injury on the basis of probabilities due to of the negligence of a physician. This is a difficult task due to a variety of reasons.

Many injuries that are the basis for a medical negligence lawsuit stem from long-term or ongoing illnesses that existed before treatment began. The time-limit for a medical malpractice case can be extended for a number of years, and injuries can develop slowly.

In these instances, it is difficult to prove that a particular medical malpractice law firm professional's breach of the standard of care caused the injury. The attorney may have gathered evidence, including expert testimony and medical records which the injured patient can utilize.

During the discovery process, which is an integral part of the legal procedure preparation for trial, your lawyer may seek disclosure of expert testimony and other documents from lawyers representing the defendants. The doctor who is defending the case will be asked to testify in deposition. This is a statement that is made under an oath. Your lawyer is able to cross-examine doctor and challenge their conclusions. The jury will decide if the plaintiff has proven the facts of the case which include breach of duty, breach and causation.

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 doctor breached his or her professional duties and those breached duties caused harm. The plaintiff's attorney must be able to prove this by utilizing evidence obtained during discovery. This involves requesting documents, including medical records, from all parties involved in a lawsuit. Depositions, wherein statements are made under oath, and recorded for use in trial, are also part of this procedure.

A doctor was in breach of his or her professional duty if he or she did something that a reasonable prudent doctor would not do in similar circumstances. It must be established that the breach was the cause of the injury directly to the patient. This is known as causation or proximate cause. For instance the patient is admitted to the hospital for a hernia surgery and is then able to have his or her gall bladder removed instead. This is medical negligence since the removal did not benefit the patient.

Medical malpractice lawsuits must be brought within a legally prescribed period of time, referred to as the statute of limitations, which is different for each state. The patient who was injured must prove that the substandard treatment caused injury, and they must establish what compensation they're entitled to.

Damages

You are entitled to compensation for any injuries you have suffered as a result of medical negligence. At Scaffidi & Associates, we will assist you in receiving an adequate and fair amount of compensation for your losses.

The first step is to file and serve a summons and complaint to all defendants named in the lawsuit. The parties then begin discovery, a procedure in which documents and statements are revealed under oath. Medical records and notes of the doctor are usually requested during discovery.

In most states, you have to demonstrate four elements in order to be compensated for any injuries caused by medical malpractice such as a duty due to the healthcare provider and a breach of that duty; a causal relationship between the breach and the patient's injury and damages resulting from the injury. If your attorney can establish all of these elements, you will have an argument for financial recovery in a medical malpractice law firm negligence claim.

In some instances the court can decide to award punitive damages. These are intended to punish the offender and deter others from engaging in similar conduct. It is not common, however, in medical malpractice cases. The courts must be able to prove evidence of malice before they are able to give these extraordinary damages.