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How to File a Medical Malpractice Case

If a patient discovers that an object foreign to her, such as surgical clamps, remains inside her body following gall bladder surgery could file a medical malpractice lawsuit. A successful claim must demonstrate the elements of medical negligence: duty, deviation from the norm and direct cause.

Our clients must establish a direct connection between the breach of duty, and the injury. This is known as the proximate reason.

The reason for injury

A medical malpractice claim may be filed by the person who was injured or a legal representative. This could be the spouse or adult child parent, guardian, or administrator of the estate of a deceased patient depending on the specific circumstances. The plaintiff in a medical malpractice lawsuit is the health professional. It could be a licensed doctor, nurse or therapist.

Expert testimony is usually required in malpractice cases. Medical experts must testify as to whether or the medical professional was in compliance with the standard of care for their particular area of expertise. They must also testify to the harm that was caused by the actions or inactions of the doctor.

Injuries resulting from malpractice and negligence can be very serious. For instance, a wrong diagnosis of a health problem could result in life-threatening consequences. Other types of injuries involve operating on the wrong body part or leaving surgical instruments inside the patient.

The patient must establish four legal elements of a malpractice lawsuit that include a duty owed to the patient by the physician and a breach of that obligation; a harm caused by the breach and resulting damages. In certain states, like New York, the law sets a limit on the amount that can be awarded for an action for malpractice.

Causation

The injury element, also known as causation, is one of the most crucial elements in a medical malpractice case. To prove causation, a plaintiff must show that they sustained their injury on the balance of probabilities as a result of the negligence of the doctor. This can be a challenging job due to a variety of reasons.

For instance, many injuries that are the cause of a medical negligence lawsuit arise from long-term or ongoing ailments that were present prior to the time of treatment. The statute of limitations on a medical malpractice case can be extended for a number of years and injuries may develop slowly.

In these cases it is often difficult to prove that a certain medical professional's breach of standard of care caused the injury. However, the patient who is afflicted might be able use the evidence collected by the attorney, including medical documents and expert testimony.

During the process of discovery, which is a part of the legal procedure for preparation for a trial, your lawyer can request the lawyers representing the defendants disclose expert testimony and other documents. The doctor who is representing the case will be required to testify in deposition. This is a declaration that is given under oath. Your lawyer may challenge the doctor's findings and cross-examine them. The jury will decide whether the plaintiff has established all the elements of the case which include breach of duty, breach and causation.

Negligence

If a claim for medical malpractice is filed, the plaintiff will have to convince the jury that it was more likely than not that the doctor breached his or her professional obligations and that those breached duties caused injury. The plaintiff's attorney has to demonstrate this through evidence obtained during discovery. This involves the request of documents, including medical records and other records from all parties in the lawsuit. This process also involves swearing statements that are recorded and used at trial.

A doctor has breached their professional obligation when they did something that a reasonable and prudent doctor would not have done under similar circumstances. It must be proven that the breach resulted in injury directly to the patient. This is known as causation or causal proximate causes. Patients may go to the hospital in order to have a hernia fixed, and instead, have their gall bladder removed. This is medical negligence because the procedure did not benefit the patient.

Medical malpractice lawsuits must be brought within a legally-defined period of time, referred to as the statute of limitations, that varies from state to state. The victim must demonstrate that the treatment was substandard and caused injury, and then they must prove what monetary compensation they are entitled to.

Damages

If medical negligence caused you to suffer an injury, you are entitled to be made whole. At Scaffidi & Associates, we can assist you in obtaining the full and fair compensation you deserve for your losses.

The first step in a lawsuit is to file and serve a complaint as well as summons and other documents on all defendants. The parties then participate in discovery, in which documents and statements are disclosed under the oath. Medical records and notes of the doctor are typically sought during discovery.

In most states, in order to receive compensation for injuries sustained by malpractice, you have to establish four elements including a duty of good faith that the healthcare provider is obligated to perform and a breach of that duty; a causal link between the breach and injury; and damages resultant from the injury. If your lawyer can prove all of these elements of a medical negligence claim, you'll have an impressive case.

In certain instances courts may decide to award punitive damages. These are intended to penalize the perpetrator and discourage others from engaging in similar misconduct. This is not the norm however, particularly in medical malpractice cases. The courts must have very clear evidence of malice before they may decide to award these extraordinary damages.