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How to File a Medical Malpractice Case

If a patient discovers that an object that is foreign like surgical clamps, remain inside her body after gall bladder surgery can bring a medical malpractice lawsuit. A successful claim must establish the legal aspects of medical negligence: duty, deviance from this duty, direct causes, and injury.

It is vital for our clients to establish a direct link between the breach of duty and the harm that is known as proximate causation.

Causes of Injury

A medical malpractice claim can be filed by the injured person or a legal person to represent them. Based on the specific circumstances, it could be the spouse of the patient or an adult child, parent, guardian ad litem or the executor or administrator of the estate of the deceased patient. In a case involving medical malpractice lawsuits malpractice, the defendant is the health care provider. This could be a licensed doctor, nurse or therapist.

The majority of cases involving malpractice involve many expert witnesses. Medical experts must testify as to whether the doctor did what was required of care in his or her specific 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 very serious. A misdiagnosis can have serious consequences, such as the possibility of a life-threatening illness. Other kinds of injuries include operating on the wrong part or putting instruments inside the patient during surgery.

The patient must establish four legal elements in a malpractice claim: a duty owed to the patient by the physician or a breach of the duty; an injury caused by the breach and the resulting 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, also known as causation is one of the most important aspects of a medical malpractice case. To establish causation, the plaintiff must demonstrate that they sustained the injury on a balance of probabilities due to of the negligence of a physician. This can be a challenging task due to several reasons.

For instance, many injuries that are the basis of a medical malpractice lawsuit stem from long-term or ongoing conditions that were already present before treatment began. Often, the statute of limitations for a medical malpractice lawsuit extends out over a number of years and the injuries may develop slowly.

In these cases the proof that a medical professional's violation of the standard of care that led to the injury is difficult. The attorney may have collected evidence, including medical records and expert testimony that the injured person could use.

During the discovery process, which is part of the legal procedure for preparing for trial, your lawyer could request the disclosure of expert testimony and other evidence from lawyers of the defendants. The doctor who is representing the case will be asked to testify in a deposition. This is a testimonies that is given under an oath. Your lawyer can cross-examine the doctor and challenge their findings. The jury will decide whether the plaintiff has proved that the allegations of the case are true including breach of duty, breach of contract and causation.

Negligence

The plaintiff must convince the jury when bringing a claim for medical malpractice in court, that it is more than likely that the doctor did not fulfill his or her obligations as a doctor and that these breaches resulted in injury. The plaintiff's lawyer must demonstrate this through evidence collected during discovery. This involves the request of documents, including medical records and other records from all parties in the lawsuit. This process also involves the recording of sworn statements and used at trial.

A doctor has violated the professional duties of a doctor in the event that he or her did something that a reasonable 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 referred to as causation or the proximate cause. A patient may visit a hospital to have a hernia fixed, and instead, have their gall bladder removed. This is medical negligence since the procedure was not beneficial to the patient.

Medical malpractice lawsuits must be filed 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 demonstrate that the treatment was substandard and caused injury, and then they have to prove the amount of compensation they deserve.

Damages

You are entitled to compensation for any injuries you've suffered as a result of medical negligence. Scaffidi & Associates can help you get fair and complete compensation for your losses.

The first step in a lawsuit is to make a complaint and serve it as well as summons and other documents on all defendants. The parties engage in discovery. This is a procedure in which documents and declarations are disclosed under an oath. Medical records and the notes of a doctor are typically requested during discovery.

In the majority of states, you need to demonstrate four elements in order to be compensated for injuries incurred by medical malpractice which includes a duty to the healthcare provider and a breach of that obligation; a causal connection between the breach and the patient's injury; and damages that flow from the injury. If your lawyer can prove all these elements of a medical negligence claim, you will have an impressive case.

In certain instances, the court may make punitive damages a possibility, which is meant to punish the wrongdoer and discourage others from committing similar conduct. But, this isn't often the case in medical malpractice cases since courts require clear evidence of malice to give these extraordinary awards.