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Medical Malpractice Lawsuits

Attorneys have a fiduciary obligation with their clients and are required to act with care, diligence and expertise. However, like all professionals, attorneys make mistakes.

There are many errors made by attorneys are considered to be malpractice. To establish legal malpractice, the victim must prove duty, breach, causation and damages. Let's look at each of these elements.

Duty

Doctors and medical professionals take an oath that they will use their expertise and knowledge to cure patients, not to cause further harm. The duty of care is the basis for patients' right to compensation if they are injured by medical malpractice. Your attorney can help you determine whether or not the actions of your doctor violated this duty of care, and if these breaches resulted in injuries or illness to you.

Your lawyer must prove that the medical professional was bound by a fiduciary duty to act with reasonable skill and care. This relationship can be established by eyewitness testimony of witnesses, doctor-patient records and expert testimony of doctors who have similar education, experience and training.

Your lawyer will also have to show that the medical professional breached their duty of care by failing to adhere to the accepted standards of their area of expertise. This is often called negligence. Your lawyer will assess the conduct of the defendant with what a reasonable person would perform in the same situation.

Your lawyer will also need to prove that the breach of the defendant's duty caused direct injury or loss. This is called causation. Your lawyer will rely on evidence including your doctor's or patient documents, witness testimony and expert testimony, to prove that the defendant’s failure to meet the standards of care was the direct reason for the loss or injury to you.

Breach

A doctor has a duty to patients of care that adhere to professional standards in medical practice. If a doctor does not live up to those standards and the failure results in injury, then medical malpractice and negligence could occur. Typically the testimony of medical professionals with similar qualifications, training and experience, as well as certifications and certificates will assist in determining what the minimum standard of care should be in a particular case. State and federal laws as well as institute policies also help determine what doctors are required to do for specific types of patients.

In order to win a malpractice claim it is necessary to prove that the doctor breached his or their duty of care, and that this breach was a direct cause of an injury. In legal terms, this is called the causation element and it is vital to establish. For instance, if a broken arm requires an xray, the doctor must fix the arm and place it in a cast for proper healing. If the doctor did not do so and the patient was left with a permanent loss of function of that arm, then malpractice may have occurred.

Causation

Legal malpractice claims based on evidence that the attorney made mistakes that led to financial losses for the client. For example, if a lawyer fails to file a lawsuit within the statute of limitations, resulting in the case being lost for ever, the injured party could bring legal malpractice lawsuits.

It is important to understand that not all errors made by attorneys are malpractice. Errors involving strategy and planning are not usually considered to be malpractice attorneys are given lots of freedom to make decisions based on their judgments as long as they are reasonable.

Likewise, the law gives attorneys considerable leeway to fail to conduct discovery on behalf of the behalf of their clients, as in the event that it is not negligent or unreasonable. The failure to discover crucial information or documents like witness statements or medical reports, is a potential example of legal malpractice. Other examples of malpractice are the inability to add certain defendants or claims, for instance the mistake of not remembering a survival number for a wrongful-death case or the recurrent failure to communicate with clients.

It's also important that it must be proved that but the negligence of the lawyer the plaintiff would have won the underlying case. The claim of the plaintiff for malpractice is deemed invalid in the event that it is not proved. This makes the process of bringing legal malpractice lawsuits difficult. For this reason, it's important to choose a seasoned attorney to represent you.

Damages

In order to prevail in a legal malpractice case, the plaintiff must show actual financial losses incurred by the actions of the attorney. In the case of a lawsuit this has to be proven with evidence like expert testimony or correspondence between the client and attorney. In addition the plaintiff has to prove that a reasonable lawyer would have avoided the harm that was caused by the attorney's negligence. This is known as proximate cause.

The causes of malpractice vary. Some of the most common mistakes include: not meeting a deadline or statute of limitations; failing to conduct the necessary conflict checks on cases; applying law improperly to a client's particular situation; and breaking the fiduciary duty (i.e. mixing trust funds with an attorney's personal accounts) or a mishandling of a case, and not communicating with a client.

Medical malpractice suits typically involve claims for compensatory damages. These compensate the victim for expenses out of pocket and losses, for example hospital and medical bills, the cost of equipment needed to aid in recovery, and loss of wages. Victims can also claim non-economic damages like discomfort and pain and loss of enjoyment their lives, as well as emotional stress.

Legal malpractice cases often involve claims for compensatory as well as punitive damages. The former compensates a victim for losses caused by the negligence of an attorney, while the latter is intended to deter any future malpractice committed by the defendant.