How to File a Medical Malpractice Case

A patient who finds a foreign object such as surgical clamps inside her body following gall bladder surgery is able to sue for medical negligence. A successful claim must establish the legal aspects of medical negligence: duty, deviance from this obligation, direct cause and injury.

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

Causes of Injury

A medical malpractice claim can be filed by the person who was injured or an attorney. This could be a spouse or adult child, parent, guardian or administrator of the estate of a deceased person depending on the circumstances. In a case involving medical malpractice the defendant is the health care provider. This could be a doctor, nurse or therapist, or any other health professional.

Malpractice cases usually require a lot of expert testimony. Medical experts must be able to testify that the medical professional acted within the standard of care in their particular field of expertise. They must also testify to the harm resulting from the doctor's actions or inactions.

Injuries that result from malpractice or negligence can be very serious. An incorrect diagnosis can lead to serious consequences, like life-threatening conditions. Other types of injuries can involve operating on the wrong body part or leaving surgical instruments inside the patient.

In order to establish a malpractice claim the patient must demonstrate four legal elements: a duty the doctor owed to them; a breach of this duty; a resultant injury; and damages. In certain states, such as New York the law limits the amount of money awarded for a malpractice case.

Causation

The injury element, also known as causation, is one of the most important aspects of a medical malpractice case. To establish causation, the plaintiff must prove that the injury was the result of the doctor's negligence. This can be a challenging task due to several reasons.

For instance, a lot of injuries that are the subject of a medical-malpractice lawsuit are the result of long-term or ongoing ailments that were present prior to treatment. Often the statute of limitation for a medical malpractice claim extends over a number of years and the injuries can develop gradually.

In these instances, it is difficult to prove that a certain medical professional's breach of the standards of care caused the injury. However, the patient who is afflicted could be able to make use of evidence gathered by the attorney, such as medical documents and expert testimony.

During the process of discovery that is part of the legal process for preparation for a trial, your attorney can request that the lawyers for the defendants be made aware of expert testimony and other documents. The doctor who is representing the case will be asked to take a deposition. This is a declaration that is made under the oath. Your lawyer will be able to cross-examine doctor and contest their conclusions. The jury will then decide whether the plaintiff has proven the essential elements of their case, including breach of duty, causation, breach of duty and injury.

Negligence

The plaintiff must convince the jury, when filing a claim for medical malpractice that it is more likely that the doctor violated the obligations of medical professional and that these breaches resulted in injury. The attorney representing the plaintiff must demonstrate this using evidence obtained during discovery. This involves soliciting documents, including medical records, from all parties involved in a lawsuit. This process also involves the recording of sworn statements and used at trial.

A doctor breached his or her professional obligations when he/she did something that a reasonable prudent doctor would not do in the same circumstances. It must be proved that the breach caused the injury directly to the patient. This is known as causation or proximate cause. Patients may visit a hospital to repair a hernia but instead end up having their gall bladder removed. This is medical malpractice attorney negligence since the procedure did not benefit the patient.

Medical malpractice lawsuits must be brought within a legally defined time frame, known as the statute of limitations, which varies by state. The victim must prove that the substandard treatment resulted in injury, and after that they must establish what compensation they're entitled to.

Damages

If a medical error has caused you to suffer injury, you have the right to be made whole. Scaffidi & Associates can help you receive 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 proceed to discovery, a procedure in which documents and statements are revealed under the oath. Medical records and the notes of the doctor are typically sought during discovery.

In most states, in order to be eligible for compensation for injuries incurred by malpractice, you have to prove four things that include a duty of care that is due to the healthcare provider and a breach of that obligation; a causal connection between the breach and injury; and damages resulting from the injury. If your attorney can demonstrate all of these elements in a medical malpractice claim, you will have a convincing case.

In certain instances courts may decide to award punitive damages. These are designed to punish the perpetrator and discourage others from engaging in similar conduct. However, this is rare in medical malpractice cases as the courts require extremely clear evidence of malice to give these extraordinary awards.