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How to File a Medical Malpractice Case

A patient who discovers that an object foreign to her, such as surgical clamps, remains inside her body following gall bladder surgery may file a medical malpractice lawsuit. A successful lawsuit must prove the legal aspects of medical negligence: duty, deviation from this duty, direct cause, and injury.

It is crucial for our clients to establish a direct relationship between the breach of duty and the resulting injury that is known as proximate causation.

The reason for injury

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

Malpractice cases usually involve many expert witnesses. Medical experts must testify as to whether the doctor did what was required of treatment in their specific area of expertise. They also have to testify to the harm resulting from the doctor's actions or inactions.

The consequences of negligence and malpractice can be severe. For instance, a misdiagnosis of a medical condition could have life-threatening effects. 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 case which include a duty to the patient by the doctor and a breach of that obligation; an injury resulting by the breach and the consequential damages. In some states, such as New York, the law places a limit on the amount of money that could be awarded for the malpractice claim.

Causation

The injury element is also called the causation. It is among the most important elements in a medical malpractice claim. To establish causation the plaintiff must prove that the injury was the result of the doctor's negligence. This is a difficult job due to a variety of reasons.

For example, many injuries that are the subject of a medical malpractice lawsuit are the result of long-term or ongoing ailments that were present prior to the time of treatment. Often, the statute of limitations for a medical malpractice lawsuit is extended over a period of years, and injuries can develop gradually.

In these cases it is difficult to prove that a medical professional's breached the standard of care that led to the injury can be difficult. However, the person who was harmed may be able to use evidence collected by the attorney, including medical documents and expert testimony.

During the discovery process, which is part of the legal procedure for getting ready for trial, your lawyer will request the disclosure of expert testimony and other documents from defense attorneys of the defendants. The doctor who is defending the case will be required to take deposition. This is a statement that is given under oath. Your lawyer can challenge doctor's findings and cross-examine them. The jury will decide whether the plaintiff has proved the elements of the case including breach of duty, breach of contract and causation.

Negligence

If a medical malpractice lawsuit is filed the plaintiff has to convince the jury that it was more likely than not that the doctor violated professional duties and that the breached duties caused injuries. The attorney representing the plaintiff must prove this by using evidence gathered during pretrial discovery. This involves soliciting documents, including medical records and other records from all parties in a lawsuit. Depositions, in which the statements are made under oath, and recorded for use at trial, are also part of this process.

A doctor has breached their professional duty in the event that they did something an ordinary prudent doctor would not have done in the same circumstances. However it must be established that the breach directly caused injury to the patient. This is called causation or proximate causes. For example the patient is admitted to the hospital for a hernia operation and then has his or the gall bladder removed instead. This is medical negligence as the removal did not benefit the patient.

Medical malpractice lawsuits must be filed within a legally-defined period of time, referred to as the statute of limitations, that varies from state to state. The patient who was injured must show that the inadequate treatment caused injury, then they must establish what compensation they're entitled to.

Damages

If medical negligence caused you to suffer an injury, you have the right to be made whole. Scaffidi & Associates can help you get fair and complete compensation for your losses.

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 then engage in discovery. This is where documents and evidence are disclosed under the oath. During discovery medical records and doctor's notes will usually be requested.

In most states, you must demonstrate four elements in order to be compensated for injuries incurred by medical malpractice attorney malpractice which includes a duty to the healthcare provider; a breach of that duty; a causal relationship between the breach and the patient's injury; and damages that flow from the injury. If your attorney can prove all these elements in a medical negligence claim, you'll have an enviable case.

In some instances, the court may award punitive damage that is designed to punish the wrongdoer and discourage others from committing similar misconduct. However, this is rare in medical malpractice cases because the courts require specific proof of malice to award these extraordinary awards.