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How to File a Medical Malpractice Case

A patient who discovers a foreign object like surgical clamps, remains in her body following gall bladder surgery could file a medical malpractice lawsuit. A successful claim has to prove the elements of medical malpractice: duty, deviation from this duty and the direct reason.

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

The reason for injury

A claim for medical malpractice can be filed by the injured person or an attorney. Based on the circumstances, this could be the spouse of the patient, an adult child or parent, guardian ad-litem or administrator or executor of the estate of the patient who died. In a medical malpractice case, the defendant is the health care provider. This could be a licensed nurse, doctor or therapist.

The majority of cases involving malpractice involve many expert witnesses. Medical experts are required to testify on whether or whether the health professional adhered to the standards of care for their particular area of expertise. They must also testify as to the damage caused by the actions or inactions of the doctor.

Injury caused by negligence and negligence can be very serious. For instance, a wrong diagnosis of a health condition can have life-threatening effects. 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 has to prove four legal elements: a duty that the doctor owed to them; a breach in this duty, resulting injury and damages. In certain states, like New York, the law places a limit on the amount that can be awarded in a malpractice claim.

Causation

The injury element is called the causation. It is one of the most important elements in a medical malpractice attorneys negligence claim. To prove causation the plaintiff must demonstrate that they suffered an injury on the balance of probabilities because due to the negligence of the doctor. This can be a difficult task for a number of reasons.

Many of the injuries that are the basis of a medical negligence lawsuit stem from chronic issues that existed before treatment began. The time-limit for a medical malpractice case can be extended over a period of time and injuries may develop slowly.

In these cases it can be difficult to prove that a certain medical professional's breach of the standard of care led to the injury. However, the patient who is afflicted could be able to make use of evidence gathered by the attorney, including medical records and expert testimony.

During the discovery process, which is an integral part of the legal process for preparation for trial, your lawyer may request the disclosure of expert testimony as well as other documents from lawyers of the defendants. The doctor who is defending the lawsuit will be called to testify during deposition, which is testimony under oath. Your lawyer will be able to cross-examine doctor and contest their conclusions. The jury will decide whether the plaintiff has proved the elements of the case including breach of duty, breach of contract and causation.

Negligence

The plaintiff must convince the jury when bringing a claim for medical malpractice to show that it is more likely that the physician violated his or her responsibilities as physician and that the actions led to injury. The plaintiff's attorney must prove this by using evidence obtained during discovery. This involves seeking documents, such as medical records from all parties involved in the lawsuit. Depositions, wherein statements are made under oath, and recorded for use in trial, are also part of this procedure.

A doctor has violated the professional duties of a doctor in the event that he or her did something that a reasonable prudent doctor would not do in similar circumstances. However it must be established that the breach directly caused the injury to the patient. This is known as causation or proximate cause. For instance the patient is admitted to the hospital for a procedure to treat a hernia and then has his or the gall bladder removed instead. This is medical negligence as the removal was not beneficial for the patient.

Medical malpractice lawsuits must be filed within a legally-defined period of time, referred to as the statute of limitations which varies according to the state. The person who has suffered injury must prove that the substandard care resulted in injury, and then he or she must prove the amount of financial compensation he or she is entitled to.

Damages

You should be compensated for any injuries that you've suffered due to medical negligence. At Scaffidi & Associates, we can assist you in obtaining an adequate and fair amount of compensation for your loss.

The first step in a lawsuit is to make a complaint and serve it along with summons and other papers on all defendants. The parties engage in discovery. It is a process in which documents and declarations are revealed under an oath. Medical records and notes of the doctor are usually requested during discovery.

In the majority of states, to receive compensation for injuries sustained by malpractice, you need to prove four things: a duty of care owed by the healthcare provider, a breach of this obligation; a causal connection between the breach and injury; and damages caused by the injury. If your lawyer can prove all of these elements, then you've got an extremely strong case for financial recovery in a medical malpractice claim.

In some instances, a court may make punitive damages available, which are designed to punish the perpetrator and discourage others from engaging in the same conduct. It is not common however, in medical malpractice cases. The courts must be able to prove evidence of malice before they may make these extraordinary awards.