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How to File a Medical Malpractice Case

A patient who discovers an object foreign to the body such as surgical clamps within her body following gall bladder surgery is able to make a claim for medical malpractice. A successful claim must establish the legal aspects of medical negligence: duty, deviance from this obligation, direct cause and injury.

Our clients must establish a direct link between the breach of duty and the injury. This is known as the proximate reason.

The reason for injury

A medical malpractice lawsuit can be filed by the person who was injured or an attorney. This could be a spouse, adult child guardian, parent or administrator of an estate belonging to a deceased patient, depending on the circumstances. In a case of medical malpractice the defendant is the health care provider. This could be a doctor, nurse or therapist, or any other health care professional.

The majority of cases involving malpractice involve an abundance of expert testimony. Medical experts must testify as to whether or not the health care provider was in compliance with the standard of care for their particular field. They must also testify regarding the injury caused by the physician's actions or inactions.

Injury caused by negligence and negligence can be very serious. A misdiagnosis could have grave consequences, such as an illness that could be life-threatening. Other types of injuries can be caused by operating on an incorrect body part or leaving surgical instruments inside the patient.

The patient must establish four legal elements of a malpractice lawsuit: a duty owed to the patient by the doctor or a breach of the obligation; a harm 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 could be awarded for an injury resulting from a malpractice claim.

Causation

The injury element, also referred to as causation is one of the most important elements of a medical malpractice case. To prove causation, a plaintiff must show that they sustained the injury based on a balance of probabilities because due to the negligence of the doctor. This can be a difficult task for a number of reasons.

Many injuries that are the basis for medical negligence lawsuits result from long-term or ongoing issues that existed before treatment began. Often the statute of limitation for a medical malpractice lawsuit extends over a variety of years and the injuries can develop gradually.

In these instances, it is difficult to prove that one particular medical professional's violation of the standard of care led to the injury. The attorney may have collected evidence, like expert testimony and medical records, that the injured patient can utilize.

In the discovery process that is part of the legal procedure for preparation for a trial, your lawyer may request that the lawyers representing the defendants disclose expert testimony and other documents. The doctor who is defending the case will be required to take a deposition. This is a testimonies that's given under an oath. Your lawyer will be able to challenge the doctor's findings and cross-examine them. The jury will decide whether the plaintiff has established all the elements of the case including breach of duty, breach of contract and causation.

Negligence

When a medical negligence claim is filed the plaintiff must to convince the jury that it was more likely than not that the physician breached his or her professional duties and that those breached duties caused injury. The plaintiff's lawyer must demonstrate this using evidence collected during discovery. This involves seeking documents, such as medical records, from all parties involved in a lawsuit. This also includes swearing statements that are recorded and used in trial.

A doctor has breached their professional obligation when they did something that an ordinary prudent doctor would not have done under similar circumstances. It must be established that the breach resulted in injury directly to the patient. This is known as causation or proximate causes. For example when a patient is taken to the hospital for a hernia surgery and ends up having his or her gall bladder removed instead. This is medical negligence since the removal was not beneficial for the patient.

Medical malpractice lawsuits must be filed within a legally defined period of time, also known as the statute of limitations, that varies from state to state. The injured patient must establish that the negligent care caused injury, and then he or she must prove how much monetary compensation he or she deserves.

Damages

If a medical malpractice lawyers error has caused you to sustain an injury, you deserve to be made whole. At Scaffidi & Associates, we can assist you in obtaining full and fair compensation for your loss.

The first step in a lawsuit is to file and serve a complaint along with summons and other papers on all defendants. The parties then proceed to discovery, a process in which documents and declarations are made public under an oath. Medical records and the notes of the doctor are usually requested during discovery.

In most states, to get compensation for injuries caused by malpractice, you need to prove four things that include a duty of care that the healthcare provider is obligated to perform, a breach of this duty; a causal link between the breach and injury; and damages resultant from the injury. If your attorney can establish all of these elements, then you've got an extremely strong case for financial recovery in a medical malpractice claim.

In certain instances the court can make punitive damages available, which are intended to penalize the perpetrator and discourage others from engaging in the same conduct. This is not the norm, however, in medical malpractice cases. The courts must have very clear evidence of malice before they may make these extraordinary awards.