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How to File a Medical Malpractice Case

A patient who finds that an object foreign to the body, such as surgical clamps, remain inside her body after gall bladder surgery may be able to file a lawsuit for medical malpractice. A successful claim must establish the legal aspects of medical negligence: duty, deviance from this obligation, direct cause and injury.

It is essential for our clients to establish a direct causal connection between the breach of duty and the harm which is referred to as proximate cause.

Causes of Injury

A claim for medical malpractice can be filed by the injured person or a legal representative. This could be a spouse, adult child guardian, parent or administrator of a deceased patient's estate, based on the circumstances. The defendant in a medical malpractice lawsuit is the health care provider. This could be a licensed doctor, nurse or therapist.

Expert testimony is usually required in cases of malpractice. Medical experts must testify as to whether or whether the health professional adhered to the standards of treatment for their particular area of expertise. They also have to testify about the harm caused by the physician's actions or inactions.

Injuries caused by negligence and mistakes can be catastrophic. A misdiagnosis can have serious consequences, such as the possibility of a life-threatening illness. Other kinds of injuries involve operating on the wrong body part or putting surgical instruments in the patient.

To prove a malpractice claim, the patient must prove four legal elements: a duty the doctor owed to them; a breach of the breach; a resulting injury; and damages. In some states, like New York, the law sets a limit on the amount that can be awarded for a malpractice claim.

Causation

The injury element is known as the causation. It is among the most important elements in a medical malpractice claim. To prove causation, the plaintiff must prove that their injury was caused by the physician'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 stem from long-term or ongoing illnesses that were present prior to the time of treatment. The time period for filing medical malpractice cases can be extended over several years, and injuries can develop slowly.

In these cases it can be difficult to prove that one particular medical professional's breach of standard of care led to the injury. However, the patient who was hurt may be able to use the evidence collected by the attorney, including medical records and expert testimony.

During the discovery process, which is part of the legal procedure for preparing for trial, your lawyer can ask for the disclosure of expert testimony and other evidence from lawyers of the defendants. The doctor who is defending the lawsuit is then asked to testify during depositions, which are the testimony under an oath. Your lawyer will be able to cross-examine doctor and contest their findings. The jury will decide whether the plaintiff has substantiated the facts of the case including breach of duty and causation.

Negligence

The plaintiff must convince jurors, when bringing a lawsuit for medical malpractice, that it is more likely that the physician violated his or her obligations as a physician and that those mistakes led to injuries. The plaintiff's lawyer has to demonstrate this by presenting evidence through pretrial discovery, which entails seeking disclosure of documents, which includes medical records from all parties who are involved in the lawsuit. Depositions, in which the statements are made under oath, and recorded for trial, are also a part of this procedure.

A doctor has violated their professional obligation by doing something that an ordinary prudent doctor would not have done in similar circumstances. It must be proved that the breach was the cause of the injury directly to the patient. This is known as causation or proximate cause. For instance the patient is admitted to the hospital for a hernia operation and ends up having his or his gall bladder removed instead. This is medical negligence because the removal was not beneficial for the patient.

Medical malpractice lawsuits must be filed within a specific legal period, referred to as the statute of limitations. This is different from state to state. The person who suffered the injury must show that the inadequate treatment resulted in injury, and after that they must establish what compensation they deserve.

Damages

If a medical error has caused you to sustain an injury, you deserve to be compensated. Scaffidi & Associates can help you receive a fair and complete compensation for your losses.

The first step is filing and serving an order and complaint on all named defendants in the lawsuit. The parties participate in discovery. This is which involves the disclosure of documents and statements made public under the oath. Medical records and the notes of the doctor are usually requested during discovery.

In most states, you have to demonstrate four elements in order to be compensated for injuries caused by medical malpractice which includes a duty to the healthcare provider and a breach of that duty; a causal relationship between the breach and the injury suffered by the patient as well as damages that result from the injury. If your attorney can establish all of these elements, you will have an extremely strong case for financial recovery in a medical malpractice attorney malpractice case.

In certain instances the court could award punitive damage that is designed to punish the perpetrator and deter others from engaging in similar conduct. However, this isn't the norm in medical malpractice cases, as courts require clear evidence of malice to award these extraordinary awards.