How to File a Medical Malpractice Case

A patient who finds an object that is foreign, for example, surgical clamps within her body after gall bladder surgery is able to sue for medical negligence. A successful claim must establish the legal aspects of medical negligence: duty, deviance from this duty, direct cause and injury.

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

The reason for injury

A medical malpractice lawsuit can be filed by the injured patient or a person who is legally authorized to act on their behalf. This could be a spouse, adult child guardian, parent or administrator of the estate of a deceased patient, based on the circumstances. In a medical negligence case the defendant is the health care provider. This could be a licensed doctor, nurse or therapist.

Expert testimony is usually required in malpractice cases. Medical experts must determine if the medical professional was acting in accordance with the standards of medical care within their particular field of expertise. They must also testify as to the harm caused by the actions or inactions of a doctor.

Injuries that result from malpractice or negligence can be very serious. For instance, a wrong diagnosis of a health problem could have life-threatening consequences. Other kinds of injuries include operating on the wrong body part or leaving surgical instruments inside the patient.

The patient must establish four legal elements in a malpractice case that include a duty owed to the patient by the physician and a breach of this obligation; an injury resulting by the breach and [Redirect Only] the consequential damages. In certain states like New York the law limits the amount of money that can be awarded in a malpractice case.

Causation

The injury element is called the causation. It is one of most crucial aspects in a medical malpractice claim. To prove causation, a plaintiff must prove that they suffered their injury on the balance of probabilities due to of the negligence of a physician. This is a difficult job due to a variety of reasons.

Many of the injuries that form the basis of a medical negligence suit result from long-term illnesses or issues that existed before treatment started. Often, the statute of limitations for a medical negligence claim is extended over a period of years, and the injuries may develop slowly.

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

During the discovery process, which is a component of the legal procedure for getting ready for trial, your lawyer can ask for the disclosure of expert testimony and other evidence from defendants' attorneys. The doctor who is defending the lawsuit is then required to testify in deposition, which is testimony given under an oath. Your lawyer will be able to challenge the doctor's findings and cross-examine them. The jury will decide then if the plaintiff has proven the necessary elements of their case including duty, breach, causation and injury.

Negligence

When a medical negligence claim is filed, the plaintiff will have to convince the jury that it was more likely than not that the physician breached his or her professional duties and that those violations caused injuries. The lawyer representing the plaintiff must show this through evidence gathered through pretrial discovery, which includes asking for disclosure of documents such as Medical Malpractice Law Firms records from all parties who are involved in the lawsuit. Depositions, in which statements are made under oath, and recorded for use in trial, are also part of this process.

A doctor has violated his or her professional obligations when he or she did something that a reasonably prudent physician would not do under the same circumstances. However it must be proven that the breach directly caused the injury to the patient. This is known as causation or proximate cause. For example 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 because the removal was not beneficial for the patient.

Medical malpractice lawsuits must be filed within a legal period, referred to as the statute of limitations. This is different from state to state. The injured patient must establish that the substandard care caused injury and then he or she must prove the amount of financial compensation he or she is entitled to.

Damages

If medical negligence has led you to suffer a traumatic injury, you are entitled to be compensated. 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 or summons, as well as other documents on all defendants. The parties then engage in discovery, a process in which documents and declarations are made public under oath. During discovery medical malpractice attorneys records and notes from a doctor will typically be sought.

In the majority of states, to be eligible for compensation for injuries incurred through malpractice, you need to prove four things that include a duty of care owed by the healthcare provider, a breach of this duty; a causal link between the breach and injury; and damages that result from the injury. If your attorney can establish all of these elements, you can make a an argument for financial compensation in a claim for medical malpractice.

In some instances the court might make punitive damages a possibility, which is meant to punish a wrongdoer, and discourage others from committing similar crimes. However, this is not the norm in medical malpractice lawyers malpractice cases, because the courts require clear evidence of malice to award these extraordinary awards.