How to File a Medical Malpractice Case

A patient who finds that an object foreign to her, such as surgical clamps, remains inside her body following gall bladder surgery may file a medical malpractice lawsuit. A successful claim must prove the elements of medical malpractice: duty, deviation from the duty, and direct reason.

Our clients must establish a direct link between the breach of duty and the injury. This is referred to as the proximate cause.

Causes of Injury

A medical malpractice lawsuit can be filed by the injured person or a legal person to act on their behalf. Based on the circumstances, this could be the spouse of the patient or an adult child parent, a guardian ad litem or the executor or administrator of the estate of the patient who died. The defendant in a medical malpractice lawsuit is the health professional. This could be a nurse, doctor, therapist or any other licensed health care professional.

Expert testimony is typically required in cases of malpractice. Medical experts are required to testify as to whether the doctor performed his duties in accordance with the standard of medical care within their special area of expertise. They also have to testify to the harm resulting from the doctor's actions or inactions.

The consequences of malpractice and negligence can be quite severe. A misdiagnosis could have grave consequences, such as an illness that could be life-threatening. Other kinds of injuries involve operating on the wrong body part or leaving surgical instruments inside the patient.

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

Causation

The injury element, also referred to as causation, is one of the most important elements of medical malpractice cases. To prove causation the plaintiff must demonstrate that they sustained the injury on the balance of probabilities because due to the negligence of the doctor. This is a challenging task due to a variety of reasons.

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

In these cases, proving that a medical professional's violation of the standard of care which led to the injury is difficult. However, the patient who is afflicted might be able use evidence collected by the attorney, including medical records and expert testimony.

During the process of discovery as part of the legal process the preparation of a trial your lawyer may request that the lawyers for the defendants be made aware of expert testimony and other documents. The doctor defending the lawsuit is then required to testify in deposition, which is testimony given under an oath. Your lawyer can challenge the doctor's findings and cross-examine them. The jury will decide if the plaintiff has proven the facts of the case including breach of duty, breach of contract and causation.

Negligence

If a medical malpractice lawsuit is filed the plaintiff must to convince the jury that it was more likely than not that the doctor did not perform his or her professional duties and those violations caused harm. The lawyer for the plaintiff must prove this using evidence gathered through pre-trial discovery, which involves asking for disclosure of documents such as medical records from all parties who are involved in the lawsuit. This process also involves sworn declarations that are recorded and used in trial.

A doctor has breached their professional obligation when they did something that a reasonable prudent physician would not have done under the same circumstances. It must be proved that the breach caused the injury directly to the patient. This is referred to as causation or the proximate cause. A patient may go to the hospital to have a hernia repaired, but end up having their gall bladder removed. This is medical malpractice as the removal of the gall bladder did not benefit the patient.

Medical malpractice lawsuits must be brought within a legally-defined period of time, also known as the statute of limitations which varies according to the state. The patient who was injured must prove that the negligent treatment caused injury, and they must prove what monetary compensation they deserve.

Damages

You are entitled to compensation for any injuries you've suffered as a result of medical negligence. At Scaffidi & Associates, we can assist you to receive full and fair compensation for your loss.

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 are involved in discovery. This is a process where documents and statements are presented under the oath. Medical records and the doctor's notes are typically requested during discovery.

In most states, to receive compensation for injuries sustained through malpractice, you need to establish four elements: a duty of care that is due to the healthcare provider and a breach of that duty; a causal link between the breach and injury; and damages resulting from the injury. If your attorney can establish all of these elements, you can make a an extremely strong case for financial compensation in a claim for medical malpractice.

In certain instances the court might decide to award punitive damages that is designed to penalize a wrongdoer and deter others from engaging in similar misconduct. This isn't often, however, in medical malpractice cases. The courts must have a clear evidence of malice before they may decide to award these extraordinary damages.