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How to File a Medical Malpractice Case

A patient who finds that an object foreign to the body like surgical clamps, remains in her body after gall bladder surgery may 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 connection between the breach of duty and the injury. This is known as the proximate reason.

The reason for injury

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

Expert testimony is usually required in cases of malpractice. Medical experts are required to be able to testify that the medical professional was acting in accordance with the standards of treatment in their special area of expertise. They must also testify about the injury caused by the physician's actions or actions or.

Injuries that result from malpractice or negligence can be quite severe. For instance, a misdiagnosis of a health problem could cause life-threatening complications. Other types of injuries can include operating on the incorrect body part or leaving surgical instruments inside the patient.

The patient must prove four legal elements in a malpractice case the duty owed to the patient by the physician or a breach of the duty; an injury caused by the breach; and resulting damages. In certain states, like New York the law limits the amount of money awarded for a malpractice claim.

Causation

The injury element, also referred to as causation is one of the most important elements in medical malpractice cases. To prove causation, a plaintiff must demonstrate that they suffered their injury based on a balance of probabilities due to of the negligence of the doctor. This is a challenging job due to various reasons.

For instance, many of the injuries that are the basis of a medical malpractice lawsuit stem from long-term, or ongoing conditions that were already present prior to the time of treatment. The time period for filing a medical malpractice lawsuit can be extended over a period of time and injuries may develop slowly.

In these instances the proof that a medical professional's breach of the standard of care that led to the injury can be difficult. However, the patient who is afflicted may be able to use evidence collected by the attorney, including medical documents and expert testimony.

During the process of discovery, which is a part of the legal process the preparation of a trial your lawyer can request the lawyers of the defendants provide expert testimony and other documents. The doctor defending the lawsuit is then asked to give evidence during a deposition, which is testimony under the oath. Your lawyer is able to cross-examine doctor and challenge their conclusions. The jury will decide whether the plaintiff has established 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 duties and that those breaches caused injury. The attorney representing the plaintiff must be able to prove this by utilizing evidence obtained during discovery. This includes seeking documents, such as medical records from all parties involved in a lawsuit. This also includes the recording of sworn statements and used in trial.

A doctor has breached their professional duty if they did something a reasonable and prudent doctor would not have done under similar circumstances. However it must be established that the breach directly caused the injury to the patient. This is known as causation or proximate cause. For instance, a patient goes to the hospital for a procedure to treat a hernia and then has his or her gall bladder removed instead. This is medical malpractice lawyer negligence since the procedure did not benefit the patient.

Medical malpractice lawsuits must be filed within a specific legal period, referred to as the statute of limitations. This differs from state to state. The person who has suffered injury must prove that the negligence resulted in injury, and then demonstrate the amount of compensation he or she deserves.

Damages

If medical negligence has caused you to suffer an injury, you should be made whole. At Scaffidi & Associates, we will assist you in receiving the full and fair compensation for your losses.

The first step in a lawsuit is to make a complaint and serve it as well as summons and other documents on all defendants. The parties then engage in discovery. This is a process which involves the disclosure of documents and statements revealed under the oath. Medical records and notes of the doctor are usually requested during discovery.

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

In certain cases the court can decide to award punitive damages. These are intended to penalize the culprit and deter others from committing the same offense. It is not common however, in medical malpractice cases. The courts must be able to prove evidence of malice before they are able to give these extraordinary damages.