How to File a Medical Malpractice Case

A patient who finds that a foreign object, such as surgical clamps, remains in her body after gall bladder surgery can be able to file a lawsuit for medical malpractice. A successful claim must demonstrate the elements of medical negligence: duty, deviation from the duty, and direct reason.

Our clients must establish a direct connection between the breach of duty and the injury. This is referred to as the proximate cause.

The reason for injury

A medical malpractice lawsuit can be filed by the person who was injured or a legal representative. Depending on the circumstances this may be the spouse of the patient or an adult child, parent, a guardian ad litem, or the administrator or executor of the estate of the patient who died. The plaintiff in a suit for medical negligence is the health professional. This could be a doctor, nurse, therapist or any other health professional.

Expert testimony is typically required in cases of malpractice. Medical experts must testify as to whether or the medical professional was in compliance with the standard of care for their particular field. They must also testify to the damage caused by the doctor’s actions or inactions.

Injury caused by negligence and negligence can be very serious. For instance, a wrong diagnosis of a health issue could have life-threatening consequences. Other kinds of injuries include operating on the wrong part or putting instruments inside the patient during surgery.

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

Causation

The injury element, also referred to as causation, is one of the most crucial elements in medical malpractice cases. To prove causation, the plaintiff must demonstrate that they suffered their injury on the balance of probabilities as a result of the physician's negligence. This can be a difficult task due to a variety of reasons.

Many of the injuries that form the basis for a medical negligence suit result from long-term conditions or ongoing illnesses that existed before treatment began. Often the statute of limitations for a medical malpractice claim extends over a variety of years, and the injuries can develop gradually.

In these situations it is often difficult to prove that a particular medical professional's breach of standard of care caused the injury. The attorney may have collected evidence, Medical malpractice lawsuits such as expert testimony and medical records that the injured person could use.

During the discovery process that is 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 who is defending the case will be asked to take a deposition. This is a testimonies that is made under an oath. Your lawyer may challenge the doctor's findings and cross-examine them. The jury will decide then if the plaintiff has proved the essential elements of their case including the duty of care, breach, causation and injury.

Negligence

The plaintiff must convince the jury in a case of medical malpractice that it is more than likely that the doctor violated his or her responsibilities as a physician and that those actions led to injury. The plaintiff's attorney must prove this by using evidence collected during discovery. This involves soliciting documents, including medical records, from all parties involved in a lawsuit. This also includes sworn statements that are recorded and used in trial.

A doctor has violated the professional duties of a doctor when he/she did something that a prudent physician 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. For instance, a patient goes to the hospital for a hernia procedure and ends up having his or the gall bladder removed instead. This is medical negligence as the procedure was not beneficial to the patient.

Medical malpractice lawsuits must be brought within a legally defined time frame, known as the statute of limitations, which varies according to the state. The injured patient has to show that the inadequate treatment caused injury, and then they must show what compensation they are entitled to.

Damages

You should be compensated for any injuries you have suffered as a result of medical negligence. Scaffidi & Associates can help you receive a fair and complete compensation for your losses.

The first step in a lawsuit is to file and serve a complaint, summons and other documents on all defendants. The parties then engage in discovery. This is a procedure where documents and statements are revealed under the oath. Medical records and the notes of the doctor are typically sought during discovery.

In many states, to receive compensation for injuries sustained by malpractice, you have to establish four elements that include a duty of care that the healthcare provider is obligated to perform and a breach of that obligation; a causal connection between the breach and injury; and damages that result from the injury. If your attorney can prove all of these elements of a medical negligence claim, you will have a strong case.

In certain instances, the court may award punitive damage which is intended to punish the wrongdoer and deter others from engaging in similar misconduct. However, this is rare in medical malpractice cases, as the courts require extremely clear evidence of malice to give these extraordinary awards.