How to File a Medical Malpractice Case

A patient who finds a foreign object such as surgical clamps within her body after gall bladder surgery may bring a lawsuit against a doctor for medical malpractice. A successful claim must establish the legal aspects of medical negligence: duty, deviation from this duty, direct cause and injury.

It is essential for our clients to establish a direct link between the breach of duty and the injury, known as proximate causation.

Causes of Injury

A claim for medical malpractice can be filed either by the person who suffered the injury or an attorney. This can be the spouse or adult child, parent, guardian or administrator of the estate of a deceased person depending on the circumstances. The defendant in a medical malpractice lawsuit is the health professional. This could be a doctor, nurse, therapist or any other licensed health care professional.

Expert testimony is usually required in malpractice cases. Medical experts are required to testify on whether or not the health care provider adhered to the standards of treatment for their particular area of expertise. They must also testify about the harm caused by the physician's actions or inactions.

Injuries resulting from malpractice and negligence can be very serious. A mistake in diagnosis can have devastating consequences, like an illness that could be life-threatening. Other kinds of injuries include operating on the incorrect body part or leaving surgical instruments inside the patient.

The patient must establish four legal elements of a malpractice claim which include a duty to the patient by the physician; a breach of this duty; injury caused by the breach and resulting damages. In certain states, like New York the law limits the amount of money that can be awarded for a malpractice claim.

Causation

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

For example, many injuries that are the subject of a medical malpractice lawsuit stem from long-term, or ongoing illnesses that were present prior to the time of treatment. The time-limit for a medical malpractice case could be extended for a number of years and injuries may develop slowly.

In these instances it is often difficult to prove that one particular medical professional's breach of the standard of care caused the injury. However, the person who was harmed could be able to use evidence collected by the attorney, such as medical documents and expert testimony.

In the discovery process, which is a part of the legal process for the preparation of a trial your lawyer may request that the lawyers representing the defendants disclose expert testimony and other documents. The doctor defending the lawsuit is then asked to testify during depositions, which are testimony under an oath. Your lawyer may cross-examine the doctor and challenge the doctor's findings. The jury will then decide if the plaintiff has established the essential elements of their case including the duty of care, breach, causation and injury.

Negligence

If a claim for medical malpractice law firms malpractice is filed in court, the plaintiff must to convince the jury that it was more likely than not that the doctor committed a breach of professional duties and that the breaches resulted in harm. The plaintiff's lawyer has to demonstrate this by presenting evidence through pretrial discovery, which involves requesting disclosure of documents including medical records from all parties who are involved in the lawsuit. The process also involves the recording of sworn statements and used in trial.

A doctor has breached their professional obligation 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 caused the injury directly to the patient. This is referred to as causation or the proximate cause. For instance, a patient goes to the hospital for a procedure to treat a hernia and is then able to have his or her gall bladder removed instead. This is medical malpractice law firm negligence since the removal was not beneficial for the patient.

Medical malpractice lawsuits must be filed within a specific legal time frame, also known as the statute of limitations. This varies from state to state. The person who has suffered injury must prove that the negligence caused injury, and then prove the amount of financial compensation he or she deserves.

Damages

If a medical error has caused you to sustain an injury, you have the right to be made whole. Scaffidi & Associates can help you receive full and fair compensation for your losses.

The first step is to file and serve an order and complaint on all defendants named in the lawsuit. The parties then begin discovery, a process by which documents and statements are revealed under oath. medical malpractice lawyers records and notes of the doctor are usually requested during discovery.

In the majority of states, to get compensation for injuries caused through malpractice, you need to establish four elements including a duty of good faith that the healthcare provider is obligated to perform, a breach of this obligation; a causal connection between the breach and injury and damages resultant from the injury. If your attorney can establish all of these elements, then you've got an argument for financial compensation in a medical malpractice case.

In certain cases, the court may give punitive damages, which is meant to punish the wrongdoer and discourage others from committing similar misconduct. It is not common however, in medical malpractice cases. The courts must be able to prove evidence of intent to commit a crime before they are able to decide to award these extraordinary damages.