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Medical Malpractice Lawsuits

Attorneys hold a fiduciary relationship with their clients and are required to behave with diligence, care and skill. Attorneys make mistakes just like any other professional.

Not every mistake made by an attorney constitutes an act of malpractice. To prove negligence in a legal sense, the aggrieved must show duty, breach of duty, causation and damage. Let's examine each of these elements.

Duty-Free

Medical professionals and doctors take the oath of using their skill and training to treat patients, and not cause additional harm. Duty of care is the foundation for a patient's right to compensation in the event of injury due to medical negligence. Your attorney can assist you determine if your doctor's actions breached this duty of care, and whether the breach caused injury or illness to you.

Your lawyer must prove that the medical professional owed you a fiduciary duty to act with reasonable competence and care. Proving that this relationship existed may require evidence such as your doctor-patient records or eyewitness evidence, or experts from doctors with similar experiences, education and training.

Your lawyer will also need to establish that the medical professional breached their duty of caring by failing to follow the accepted standards of their field. This is often referred to as negligence, and your attorney will examine the defendant's actions to what a reasonable individual would do in the same circumstance.

In addition, your lawyer must prove that the defendant's breach of duty directly resulted in injury or loss to you. This is known as causation, and your lawyer will make use of evidence such as your medical documents, witness statements and expert testimony to prove that the defendant's failure to live up to the standard of care in your case was the direct cause of your injury or loss.

Breach

A doctor is responsible for the duties of care that conform to the standards of medical professional practice. If a doctor fails to live up to those standards and fails to do so results in injury, then medical malpractice or negligence could occur. Typically the testimony of medical professionals with similar qualifications, training, certifications and experience will aid in determining what the best standard of treatment should be in a particular situation. Federal and state laws, along with institute policies, help define what doctors are required to provide for specific types of patients.

To prevail in a malpractice lawsuit the case must be proved that the doctor breached his or their duty of care, and that this breach was a direct cause of injury. This is known in legal terms as the causation component and it is essential that it is established. For instance when a broken arm requires an x-ray, the doctor must properly fix the arm and place it in a cast for proper healing. If the doctor is unable to do this and the patient suffers a permanent loss in the use of their arm, malpractice could have taken place.

Causation

Attorney malpractice claims rely on the evidence that proves that the lawyer's mistakes caused financial losses to the client. For instance the lawyer does not file a lawsuit within the statute of limitations, resulting in the case being lost forever and the victim could bring legal malpractice lawsuits.

It is crucial to realize that not all mistakes by attorneys are malpractice. Strategy and planning errors do not usually constitute malpractice. Attorneys have a broad choice of discretion when it comes to making decisions, as long as they're reasonable.

The law also allows attorneys ample discretion to refrain from performing discovery on behalf of their clients, so long as the failure was not unreasonable or a case of negligence. Legal malpractice can be committed by not obtaining crucial documents or facts, like medical reports or witness statements. Other examples of malpractice lawyers are the failure to add certain defendants or claims, such as not noticing a survival count in an unjustly-dead case or the constant failure to communicate with clients.

It is also important to keep in mind the fact that the plaintiff must demonstrate that, if it weren't for the lawyer's careless conduct, they would have won their case. The plaintiff's claim for malpractice will be rejected when it isn't proven. This makes the process of bringing legal malpractice lawsuits difficult. Therefore, it's important to find an experienced attorney to represent you.

Damages

To prevail in a legal malpractice lawsuit plaintiffs must show financial losses that result from the actions of an attorney. In a lawsuit, this has to be proven through evidence, such as expert testimony and correspondence between the attorney and client. The plaintiff must also show that a reasonable lawyer could have prevented the damage caused by the negligence of the lawyer. This is known as proximate cause.

The causes of malpractice vary. Some of the more common types of malpractice include the failure to meet a deadline, such as the statute of limitations, a failure to perform a conflict check or other due diligence of a case, improperly applying the law to the client's situation or breaching a fiduciary obligation (i.e. the commingling of funds from a trust account with an attorney's own accounts as well as failing to communicate with the client are all examples of malpractice.

In most medical malpractice cases the plaintiff is seeking compensatory damages. The compensations pay for out-of pocket expenses and expenses like medical and hospitals bills, the cost of equipment to aid in recovery and lost wages. Victims are also able to claim non-economic damages such as discomfort and pain and loss of enjoyment their lives, and emotional suffering.

In many legal malpractice cases, there are lawsuits for punitive as well as compensatory damages. The former compensates a victim for the loss resulting from the negligence of the attorney, whereas the latter is intended to discourage future misconduct by the defendant.