How to File a Medical Malpractice Case

A patient who discovers an object that is foreign, for example, surgical clamps in her body following gall bladder surgery can sue for medical negligence. A successful claim has to prove the elements of medical malpractice: duty, deviance from this duty and direct cause.

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

Causes of Injury

A claim for medical malpractice can be filed by the victim or a legal representative. This could be a spouse, adult child, parent, guardian or administrator of a deceased patient's estate, based on the circumstances. In a medical malpractice case, the defendant is the health care provider. This could be a doctor, nurse, therapist or any other licensed health professional.

Expert testimony is usually required in cases of malpractice. Medical experts are required to be able to testify that the health care provider performed his duties in accordance with the standard of care in his or her particular field of expertise. They must also testify as to the harm caused by the actions or inactions of the doctor.

The consequences of negligence and mistakes can be devastating. For example, a misdiagnosis of a health problem could have life-threatening consequences. Other types of injuries can involve operating on the wrong body part or putting surgical instruments in the patient.

In order to establish a malpractice case the patient must demonstrate four legal elements: a duty that the doctor owed them; a breach in this duty, resulting injury; and damages. In certain states, like New York the law limits the amount of money awarded for a malpractice claim.

Causation

The injury element is also called the causation. It is one of most important aspects in a medical malpractice claim. To establish causation, the plaintiff must prove that they sustained their injury based on a balance of probabilities because of the physician's negligence. This is a challenging task for several reasons.

For example, many injuries that are the cause of a medical negligence lawsuit stem from long-term, or ongoing illnesses that were present before treatment began. The time limit for a medical malpractice lawsuit can be extended over a period of time and injuries can develop slowly.

In these cases it is often difficult to prove that a particular medical professional's violation of the standards of care caused the injury. However, the patient who was hurt could be able to use the evidence collected by the attorney, like medical documents and expert testimony.

In the discovery process that is part of the legal process for preparation for a trial, your attorney can request that the defendants' lawyers disclose expert testimony and other documents. The doctor who is defending the lawsuit is then required to testify in deposition, which is testimony that is under the oath. Your lawyer will be able to cross-examine doctor and challenge their conclusions. The jury will decide if the plaintiff has proven that the allegations of the case are true, including duty, breach and causation.

Negligence

When a medical negligence claim is filed in court, the plaintiff must 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 injuries. The attorney representing the plaintiff must demonstrate this through evidence gathered during pretrial discovery. This includes soliciting documents, including medical records, from all parties involved in the lawsuit. This process also includes sworn statements that are recorded and used at trial.

A doctor has violated his or her professional obligations if he or she did something that a reasonably prudent physician would not do in similar circumstances. It must be established that the breach caused the injury directly to the patient. This is known as causation or proximate cause. Patients may go to the hospital to repair a hernia, but end up having their gall bladder removed. This is medical malpractice since the removal of the gall bladder did not benefit the patient.

Medical malpractice lawsuits must be brought within a legally defined period of time, called the statute of limitations which varies according to the state. The injured patient must establish that the substandard care resulted in injury, and then he or she must demonstrate the amount of compensation they are entitled to.

Damages

You should be compensated for any injuries that you've suffered due to medical malpractice law firms negligence. At Scaffidi & Associates, we will assist you in receiving the full and fair compensation you deserve for your losses.

The first step is filing and serving the complaint and summons to all defendants named in the lawsuit. The parties then engage in discovery, in which documents and statements are made public under oath. Medical records and notes of a doctor are typically requested during discovery.

In most states, you must prove four things to be compensated for injuries incurred by medical malpractice which includes a duty to the healthcare provider in breach of that duty; a causal connection between the breach and the patient's injury and the damages that result from the injury. If your attorney can establish all of these elements, you can make a an extremely strong case for financial recovery in a medical negligence claim.

In certain cases the court can award punitive damages, which are intended to penalize the perpetrator and discourage others from committing the same offense. However, this is not the norm in medical malpractice cases, as the courts require extremely precise proof of malice before they can award these extraordinary awards.