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How to File a Medical Malpractice Case

A patient who finds an object that is foreign, for example, surgical clamps in her body following gall bladder surgery can make a claim for medical negligence. A successful claim has to prove the elements of medical malpractice: duty, deviation from the duty, and direct cause.

Our clients must establish a direct connection between the breach of duty and the injury. This is referred to as proximate cause.

Cause of Injury

A medical malpractice claim can be filed by the person who has been injured or a legal person to represent them. This could be the spouse, adult child, parent, guardian or administrator of an estate belonging to a deceased patient depending on the circumstances. In a case of medical malpractice the defendant is the health care provider. This could be a nurse, doctor or therapist, or any other licensed health care professional.

Expert testimony is typically required in cases of malpractice. Medical experts are required to testify on whether or not the health care provider was in compliance with the standard of care for their specific area. They must also testify to the damage caused by the doctor's actions or inactions.

Injury caused by negligence and malpractice can be severe. For instance, a misdiagnosis of a health condition can have life-threatening effects. Other types of injuries can include operating on the incorrect body part or putting surgical instruments in the patient.

To establish a malpractice claim the patient has to prove four legal elements: a duty that the physician owed to them; a breach in this duty; a resultant injury and damages. In some states, like New York, the law sets a limit on the amount that can be awarded in an action for malpractice.

Causation

The injury element is also called the causation. It is among the most important elements in a medical negligence claim. To establish causation the plaintiff must demonstrate that their injury was caused by the doctor's negligence. This is a difficult job due to a variety of reasons.

A lot of the injuries that form the basis for a medical negligence lawsuit result from long-term illnesses or conditions which were present before treatment began. Often the statute of limitation for a medical malpractice lawsuit extends over a variety of years, and the injuries can develop gradually.

In these instances, proving that a medical professional's breached the standard of care that led to the injury is difficult. However, the patient who is afflicted may be able to use the evidence gathered by the attorney, like medical records and expert testimony.

During the discovery process, which is part of the legal procedure preparing for trial, your lawyer will request disclosure of expert testimony and other documents from lawyers of the defendants. The doctor defending the lawsuit is then asked to give evidence during deposition, which is testimony under the oath. Your lawyer will be able to challenge the doctor's findings and cross-examine them. The jury will then decide if the plaintiff has proved the necessary elements of their claim, which includes the duty of care, breach, causation and injury.

Negligence

The plaintiff must convince jurors, in a case of globe medical malpractice attorney malpractice, that it is likely that the doctor did not fulfill his or her duties as physician and that the mistakes led to injuries. The plaintiff's attorney has to demonstrate this using evidence gathered during pretrial discovery. This involves requesting documents, including medical records as well as other documents from all parties in a lawsuit. The process also involves the recording of sworn statements and used in trial.

A doctor has violated his or her professional duty when he or she did something that a reasonable prudent physician would not do under similar circumstances. It must be proven that the breach resulted in injury directly to the patient. This is referred to as causation, or the proximate cause. A patient may go to the hospital in order to repair a hernia, but instead end up having their gall bladder removed. This is medical negligence as the removal was not beneficial for the patient.

Medical malpractice suits must be filed within a legal time frame, also known as the statute of limitations. This differs from state to state. The injured patient must establish that the negligent care caused injury and then he or she must prove how much monetary compensation he or she is entitled to.

Damages

You are entitled to compensation for any injuries you've suffered due to medical negligence. Scaffidi & Associates can help you receive a fair and complete compensation for your losses.

The first step in a lawsuit is to make a complaint and serve it, summons and other documents on all defendants. The parties participate in discovery. This is a procedure in which documents and declarations are revealed under oath. During discovery, de land medical malpractice lawsuit records and notes from a doctor are usually requested.

In the majority of states, you have to prove four things to be compensated for the injuries caused by medical malpractice such as a duty due to the healthcare provider and a breach of that duty; a causal relationship between the breach and the patient's injury; and damages that flow from the injury. If your lawyer can prove all these elements in a medical negligence claim, you'll have a convincing case.

In certain instances, courts can award punitive damages, which are intended to punish the offender and deter others from engaging in the same conduct. It is not common however, particularly in medical malpractice cases. The courts must have clear evidence of malice before they can make these extraordinary awards.