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How to File a medical malpractice attorney Malpractice Case

A patient who finds that an object foreign to her, such as surgical clamps, remain inside her body after gall bladder surgery could file a medical malpractice lawsuit. A successful lawsuit must prove the legal aspects of medical negligence: duty, deviance from this duty, direct cause and injury.

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

Causes of Injury

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

Expert testimony is typically required in cases of malpractice. Medical experts must determine if the health care provider was acting in accordance with the standards of care in their particular field of expertise. They also have to testify about the injury that was caused by the physician's actions or inactions.

Injuries caused by negligence and malpractice can be severe. An incorrect diagnosis can lead to serious consequences, including a life-threatening condition. Other types of injuries include performing surgery on the wrong body part or putting instruments inside the patient during surgery.

To establish a malpractice claim the patient must demonstrate four legal elements: a duty that the doctor owed them; a breach of this duty; a resultant injury; and damages. In some states, such as New York, the law puts a limit on amount of money that can be awarded in a malpractice claim.

Causation

The injury element, also known as causation, is one of the most important elements in a medical malpractice case. To prove causation, a plaintiff must prove that they sustained the injury on the balance of probabilities due to of the negligence of a physician. This can be a difficult task due to a variety reasons.

For example, many injuries that are the subject of a medical malpractice lawsuit arise from long-term or ongoing conditions that were present prior to the time of treatment. Often, the statute of limitations for a claim involving medical malpractice is extended over a period of years, and the injuries may develop slowly.

In these situations, it is difficult to prove that a specific medical professional's failure to adhere to the standards of care caused the injury. The attorney may have gathered evidence, such as expert testimony and medical records which the injured patient can utilize.

During the process of discovery as part of the legal process for the preparation of a trial your attorney can request that the lawyers of the defendants provide expert testimony and other documents. The doctor who is defending the case will be required to testify in deposition. This is a testimony which is under oath. Your lawyer can cross-examine the doctor and challenge their conclusions. The jury will decide whether the plaintiff has proved the facts of the case including breach of duty, breach of contract and causation.

Negligence

The plaintiff must convince the jury when filing a claim for medical malpractice, that it is more likely that the doctor acted in violation of his or her responsibilities as medical professional and that these breaches resulted in injury. The plaintiff's attorney must demonstrate this through evidence obtained during discovery. This involves requesting documents, Medical Malpractice including medical records from all parties involved in the lawsuit. This also includes swearing statements that are recorded and used in trial.

A doctor has violated their professional duty in the event that they did something a reasonable and prudent doctor would not have done in the same circumstances. It must be proved that the breach resulted in injury directly to the patient. This is referred to as causation or proxy causes. A patient might go to the hospital to repair a hernia but end up having their gall bladder removed. This is medical negligence because the removal did not benefit the patient.

Medical malpractice lawsuits must be filed within a legal time frame, also known as the statute of limitations. This differs from state to state. The person who has suffered injury must prove that the care provided was substandard and caused injury, and then show how much compensation he or she deserves.

Damages

You should be compensated for any injuries you've suffered as a result of medical negligence. At Scaffidi & Associates, we can assist you in obtaining 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 then proceed to discovery, a procedure in which documents and statements are disclosed under the oath. Medical records and the notes of the doctor are typically sought during discovery.

In most states, you must prove four things in order to be compensated for injuries incurred by medical malpractice: a duty owed by the healthcare provider in breach of that duty; a causal connection between the breach and the injury suffered by the patient and damages resulting from the injury. If your attorney can prove all these elements in a medical malpractice claim, you will have a convincing case.

In some cases the court can give punitive damages that is designed to punish the perpetrator and discourage others from committing similar crimes. This is rare however, particularly in medical malpractice cases. The courts must have clear evidence of malice before they can give these extraordinary damages.