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How to File a Medical Malpractice Case

A patient who discovers a foreign object such as surgical clamps inside her body following gall bladder surgery is able to sue for medical malpractice lawyers malpractice. A successful claim must prove the elements of medical malpractice: duty, deviance from this duty and direct reason.

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

Causes of Injury

A medical malpractice claim can be initiated by the patient who was injured or by a person legally appointed to represent them. It could be the spouse or adult child or parent, guardian or administrator of the estate of a deceased patient depending on the circumstances. In a case involving medical malpractice the defendant is the health care provider. This could be a doctor, nurse or therapist, or any other health care professional.

Malpractice cases typically involve a lot of expert testimony. Medical experts are required to testify as to whether the healthcare provider acted within the standard of medical care within their particular field of expertise. They also have to testify to the damage caused by the actions or inactions of the doctor.

Injuries resulting from malpractice and negligence can be very severe. An incorrect diagnosis can lead to serious consequences, like life-threatening conditions. Other types of injuries can include operating on the incorrect body part or leaving surgical instruments inside the patient.

The patient must prove four legal elements of a malpractice claim which include a duty to the patient by the physician and a breach of this duty; an injury caused by the breach; and the resulting damages. In some states, like New York, the law sets a limit on the amount of money that can be awarded in the malpractice claim.

Causation

The injury element, also known as causation, is one the most important elements of a medical malpractice case. To establish causation the plaintiff must prove that their injury was caused by a physician's negligence. This can be a challenging task for several reasons.

Many of the injuries that are the basis of a medical negligence lawsuit stem from long-term or ongoing illnesses that existed before treatment started. The statute of limitations on a medical malpractice lawsuit can be extended over several years, and injuries can develop slowly.

In these instances it is often difficult to prove that a specific medical professional's failure to adhere to the standards of care caused the injury. However, the person who was harmed could be able to use the evidence collected by the attorney, including medical documents and expert testimony.

During the discovery process, which is part of the legal procedure for prepping for trial, your lawyer will seek disclosure of expert testimony and other documents from lawyers representing the defendants. The doctor who is defending the lawsuit will then be asked to testify during a deposition, which is testimony under oath. Your lawyer can challenge doctor's findings and cross-examine them. The jury will decide whether the plaintiff has proved all the elements of the case which include breach of duty, breach and causation.

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 did not perform his or her professional duties and that the breaches resulted in harm. The plaintiff's attorney has to prove this by using evidence gathered during pretrial discovery. This involves soliciting documents, including medical records from all parties involved in a lawsuit. Depositions, in which statements are made under oath, and recorded for use at trial, are also part of this process.

A doctor violated the professional duties of a doctor when he or she did something that a prudent doctor 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 proximate causes. Patients may go to the hospital to have a hernia repaired, but instead end up having their gall bladder removed. This is medical malpractice since the removal of the gall bladder was not beneficial to 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 substandard care caused injury, and then show how much compensation he or she deserves.

Damages

If medical negligence has led you to suffer an injury, you deserve to be made whole. Scaffidi & Associates can help you receive fair and full 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 are involved in discovery. This is where documents and evidence are revealed under an oath. Medical records and notes of the doctor are usually requested during discovery.

In the majority of states, you need to demonstrate four elements in order to be compensated for injuries caused by medical malpractice such as a duty due to the healthcare provider; 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 in a medical negligence claim, you'll have an enviable case.

In some instances courts may give punitive damages, which are designed to punish the wrongdoer and deter others from engaging in the same conduct. This isn't often however, in medical malpractice cases. The courts must be able to prove evidence of intent to commit a crime before they are able to award these extraordinary damages.