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Medical Malpractice Lawsuits

Attorneys are in a fiduciary position with their clients and are expected to act with care, diligence and skill. However, like all professionals attorneys make mistakes.

There are many mistakes made by lawyers are a result of malpractice. To prove legal negligence, the aggrieved must show the duty, breach of duty, causation, and damages. Let's look at each one of these aspects.

Duty

Doctors and other medical professionals swear to use their education and expertise to treat patients and not to cause harm to others. The duty of care is the foundation for the right of patients to receive compensation if they are injured by medical malpractice. Your attorney can determine if the actions of your doctor violated the duty to care and if these breaches resulted in injury or illness.

Your lawyer has to prove that the medical professional you hired owed an obligation of fiduciary to act with reasonable competence and care. This relationship may be proven by eyewitness testimony of witnesses, doctor-patient reports and expert testimony from doctors who have similar educational, experience and training.

Your lawyer will also have to demonstrate that the medical professional breached their duty to care by not adhering to the accepted standards in their area of expertise. This is often referred to as negligence, and your attorney will evaluate the defendant's conduct with what a reasonable person would do in the same circumstance.

Your lawyer must prove that the defendant's lapse of duty directly resulted in your loss or injury. This is called causation. Your lawyer will rely on evidence like your medical or patient records, witness testimony and expert testimony, to demonstrate that the defendant’s failure to comply with the standard of care was the main cause of the injury or loss to you.

Breach

A doctor is required to perform a duty of care for his patients that corresponds to professional medical standards. If a doctor fails to adhere to these standards and the resulting failure causes an injury and/or medical malpractice, then negligence could occur. Typically the testimony of medical professionals who have similar training, expertise and certifications will help determine what the standard of medical care should be in a particular situation. State and federal laws and institute policies can also be used to determine what doctors should perform for specific types of patients.

To win a Malpractice attorney case it is necessary to prove that the doctor breached his or her duty of care and that this breach was the direct cause of an injury. In legal terms, this is known as the causation component, and it is vital to establish. For instance in the event that a damaged arm requires an xray the doctor must properly fix the arm and place it in a cast to ensure proper healing. If the doctor did not perform this task and the patient suffered permanent loss of use of the arm, then malpractice may have occurred.

Causation

Attorney malpractice claims are based on the evidence that proves that the lawyer's errors resulted in financial losses for the client. For instance when a lawyer fails to file a lawsuit within the prescribed time of limitations, which results in the case being lost forever and the victim can bring legal malpractice actions.

It is important to understand that not all mistakes made by lawyers are a sign of malpractice. Strategy and planning errors do not usually constitute negligence. Attorneys have a broad range of discretion to make decisions, as long as they're reasonable.

The law also gives attorneys considerable leeway to fail to perform discovery on the behalf of their clients, as in the event that it is not negligent or unreasonable. Legal malpractice is committed by failing to discover important documents or facts, such as medical reports or witness statements. Other examples of malpractice include a inability to include certain claims or defendants such as failing to include a survival count in a wrongful death lawsuit or the continual and long-running failure to communicate with clients.

It is also important to keep in mind the fact that the plaintiff needs to prove that, if not due to the lawyer's negligent behavior they would have won their case. The plaintiff's claim of malpractice lawyer will be rejected if it's not proved. This makes bringing legal malpractice claims difficult. This is why it's important to choose a seasoned attorney to represent you.

Damages

A plaintiff must show that the attorney's actions have caused actual financial losses in order to prevail in a legal malpractice suit. This should be proved in a lawsuit with evidence like expert testimony, correspondence between the client and attorney or billing records, and other records. In addition the plaintiff has to prove that a reasonable lawyer would have avoided the damage caused by the negligence of the attorney. This is known as proximate cause.

The act of malpractice can be triggered in a variety of different ways. The most frequent errors include: not meeting an expiration date or statute of limitations; failing to conduct a conflict check on an instance; applying the law incorrectly to a client's circumstances; and breaching the fiduciary duty (i.e. the commingling of funds from a trust account with the attorney's own accounts or handling a case improperly and not communicating with the client are just a few examples of misconduct.

In most medical malpractice cases the plaintiff seeks compensatory damages. These compensate the victim for out-of-pocket expenses and losses, including medical and hospital bills, costs of equipment required to aid in recovery, and lost wages. Victims may also claim non-economic damages like discomfort and pain or loss of enjoyment in their lives, and emotional distress.

In a lot of legal malpractice cases, there are claims for punitive or compensatory damages. The former compensates the victim for the loss resulting from the negligence of the attorney, while the latter is designed to discourage future malpractice by the defendant.