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How to File a Medical Malpractice Case

If a patient discovers that a foreign object like surgical clamps, is still inside her body after gall bladder surgery could file a medical malpractice lawsuit. A successful claim must establish the legal aspects of medical negligence: duty, deviation from this duty, direct cause, and injury.

Our clients must establish a direct link between the breach of duty and the injury. This is known as the proximate cause.

The reason for injury

A medical malpractice claim can be filed by the person who has been injured or a legal person to act on their behalf. Depending on the circumstances, this could be the spouse of the patient, an adult child or parent, a guardian ad litem or the administrator or executor of the estate of the patient who died. The plaintiff in a medical malpractice lawsuit is the health care provider. This could be an accredited doctor, nurse or therapist.

Expert testimony is often required in cases of malpractice. Medical experts must be able to testify that the medical professional was acting in accordance with the standards of care in their particular field of expertise. They must also testify to the harm caused by the actions or inactions of a doctor.

Injuries caused by negligence and malpractice can be severe. A misdiagnosis can have serious consequences, such as an illness that could be life-threatening. Other types of injuries could include performing surgery on the wrong body part or leaving instruments inside the patient during surgery.

To establish a malpractice case, the patient must prove four legal elements: a duty that the physician owed to them; a breach of this duty, resulting injury and damages. In certain states like New York the law limits the amount of money that can be awarded in a malpractice case.

Causation

The injury element is known as the causation. It is among the most crucial elements in a medical negligence claim. To establish causation the plaintiff must prove that the injury was caused by a physician's negligence. This can be a challenging task for several reasons.

A lot 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. The time period for filing medical malpractice cases can be extended over the course of several years and the development of injuries can happen slowly.

In these situations, it is difficult to prove that a certain medical professional's failure to adhere to the standard of care led to the injury. However, the person who was harmed could be able to use evidence collected by the attorney, like medical records and expert testimony.

During the discovery process, which is an integral part of the legal procedure for preparation for trial, your lawyer can ask for the disclosure of expert testimony and other documents from defense attorneys of the defendants. The doctor who is defending the lawsuit is then called to testify during depositions, which are testimony given under the oath. Your lawyer can challenge doctor's findings and cross-examine them. The jury will decide whether the plaintiff has established all the elements of the case including breach of duty and causation.

Negligence

If a medical malpractice lawsuit is filed in court, the plaintiff must to convince the jury that it was more likely than not that the doctor committed a breach of professional obligations and that those breached duties caused injury. The plaintiff's attorney has to demonstrate this using evidence gathered during discovery. This includes the request of documents, including medical records from all parties involved in the lawsuit. This process also includes swearing statements that are recorded and used in trial.

A doctor was in breach of his or her professional duty when he or she did something that a prudent doctor would not do under the same circumstances. However it must be proved that the breach directly caused injury to the patient. This is referred to as causation or proximate causes. For example, a patient goes to the hospital for a procedure to treat a hernia and is later told that he or his gall bladder removed instead. This is medical negligence as the removal was not beneficial for the patient.

Medical malpractice suits must be filed within a legal time frame, also known as the statute of limitations. This is different from state to state. The person who has suffered injury must prove that the negligence caused injury and then prove how much monetary compensation he or her deserves.

Damages

If medical negligence caused you to suffer an injury, you should be compensated. At Scaffidi & Associates, we can assist you in obtaining the full and fair 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 begin discovery, a procedure in which documents and statements are made public under oath. During discovery medical records and notes from a doctor are typically requested.

In the majority of states, you have to establish four elements to be compensated for the injuries caused by medical malpractice such as a duty due to the healthcare provider in breach of that obligation; a causal connection between the breach and the injury suffered by the patient; and damages that flow from the injury. If your attorney can demonstrate all of these elements in a medical malpractice claim, you'll have an impressive case.

In some instances the court can decide to award punitive damages which is intended to penalize a wrongdoer and discourage others from committing similar conduct. However, this is not the norm in medical malpractice cases, since courts require specific proof of malice to award these extraordinary awards.