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How to File a Medical Malpractice Case

If a patient discovers that an object foreign to her, such as surgical clamps, is still inside her body after gall bladder surgery can bring a medical malpractice lawsuit. A successful claim must demonstrate the elements of medical negligence: duty, deviation from the duty, and direct reason.

It is important for our clients to establish a direct causal connection between the breach of duty and the injury called proximate causation.

Causes of Injury

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

Malpractice cases usually involve many expert witnesses. Medical experts must determine if the doctor did what was required of treatment in their specific area of expertise. They also have to testify to the harm that was caused by the actions or inactions of the doctor.

Accidents caused by negligence or mistakes can be catastrophic. An incorrect diagnosis can lead to serious consequences, including a life-threatening condition. Other types of injuries include operating on the wrong body part or leaving surgical instruments inside the patient.

The patient must establish four legal elements of a malpractice claim the duty owed to the patient by the doctor and a breach of that duty; an injury caused by the breach and the resulting damages. In some states such as New York the law limits the amount of money awarded for a malpractice case.

Causation

The injury element is known as the causation. It is one of most crucial elements in a medical negligence claim. To prove causation, the plaintiff must prove that the injury was the result of the doctor's negligence. This is a difficult task due to a variety reasons.

A lot of the injuries that form the basis for a medical negligence suit result from chronic conditions that existed prior to when treatment began. Often, the statute of limitations for a medical negligence claim extends over a variety of years, and injuries can develop gradually.

In these cases it is necessary to prove that a medical professional's failure to adhere to the standard of care led to the injury is a challenge. The attorney could have collected evidence, such as expert testimony and medical records that the injured person could use.

During the discovery process, which is a component of the legal procedure getting ready for trial, your lawyer may request disclosure of expert testimony and other documents from the defendants' attorneys. The doctor defending the lawsuit will then be asked to testify during depositions, which are testimony given under the oath. Your lawyer can challenge doctor's findings and cross-examine them. The jury will decide whether the plaintiff has substantiated that the allegations of the case are true which include breach of duty, breach and causation.

Negligence

If a medical malpractice lawsuit is filed the plaintiff has to convince the jury that it was more likely than not that the physician committed a breach of professional duties and those breaches resulted in harm. The plaintiff's attorney has to be able to prove this by utilizing evidence gathered during pretrial discovery. This includes soliciting documents, including medical malpractice law firm records as well as other documents from all parties in a lawsuit. This process also includes swearing statements that are recorded and used in trial.

A doctor has violated their professional obligation in the event that they did something a reasonable prudent physician would not have done under similar circumstances. However it must be established that the breach directly caused injury to the patient. This is known as causation or proximate cause. For example an individual goes to the hospital for a hernia surgery and then has his or his gall bladder removed instead. This is medical negligence since the removal did not benefit the patient.

Medical malpractice lawsuits must be brought within a legally prescribed period of time, called the statute of limitations, which varies by state. The patient who is injured must prove that the negligent care caused injury, and then he or she must show how much compensation they are entitled to.

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 in obtaining the full and fair compensation you deserve for your losses.

The first step is to file and serve a summons and complaint to all defendants named in the lawsuit. The parties then engage in discovery. This is a procedure which involves the disclosure of documents and statements disclosed under oath. During discovery medical records and doctor's notes will typically be sought.

In the majority of states, you must prove four things in order to be compensated for any injuries caused by medical malpractice that is a duty owed by the healthcare provider; a breach of that duty; a causal relationship between the breach and the patient's injury and damages resulting from the injury. If your attorney can prove all these elements in a medical negligence claim, you will have an impressive case.

In some cases the court can award punitive damages, which are designed to punish the culprit and deter others from engaging in similar misconduct. This is rare however, especially in medical malpractice cases. The courts must have clear evidence of malice before they can make these extraordinary awards.