How to File a Medical Malpractice Case

A patient who discovers an object foreign to her, such as surgical clamps, remains inside her body following gall bladder surgery could file a medical malpractice lawsuit. A successful claim must establish the legal elements of medical negligence: duty, deviance from this obligation, direct cause and injury.

It is vital for our clients to establish a direct relationship between the breach of duty and the harm, known as proximate causation.

The reason for injury

A medical malpractice case can be filed by the person who has been injured or by a person legally appointed to act on their behalf. Depending on the circumstances this could be a spouse of the patient or an adult child, parent, a guardian ad litem or the administrator or executor of the estate of the patient who died. In a medical malpractice case the defendant is the health care provider. This could be an accredited nurse, doctor or therapist.

Malpractice cases usually require the testimony of experts. Medical experts must testify as to whether or whether the health professional was in compliance with the standard of care for their specific area. They also have to testify to the harm resulting from the actions or inactions of a doctor.

Injuries resulting from malpractice and negligence can be extremely serious. An incorrect diagnosis can lead to serious consequences, including life-threatening conditions. Other types of injuries include operating on the wrong part or putting instruments inside the patient during surgery.

The patient must prove four legal elements in a malpractice case which include a duty to the patient by the doctor; a breach of this duty; an injury caused by the breach; and the consequential damages. In certain states like New York the law limits the amount of money awarded for a malpractice case.

Causation

The injury element is known as the causation. It is among the most crucial aspects in a medical malpractice claim. To establish causation, the plaintiff must prove that the injury was caused by a physician's negligence. This is a difficult task for a number of reasons.

For example, many injuries that are the subject of a medical malpractice lawsuit arise from long-term or ongoing conditions that were already in the process of being treated prior to. Often, the statute of limitations for a claim involving medical malpractice extends over a variety of years, and the injuries can develop gradually.

In these situations it is often difficult to prove that a specific medical professional's breach of the standards of care caused the injury. However, the person who was harmed could be able to make use of evidence gathered by the attorney, including medical documents and expert testimony.

During the discovery process, which is a component of the legal procedure preparing for trial, your lawyer could request disclosure of expert testimony and other evidence from lawyers representing the defendants. The doctor who is defending the case will be required to give deposition. This is a testimony that's given under an oath. Your lawyer may challenge the doctor's findings and cross-examine them. The jury will decide whether the plaintiff has substantiated the facts of the case including breach of duty and causation.

Negligence

When a medical malpractice claim is filed the plaintiff has to convince the jury that it was more likely than not that the doctor committed a breach of professional duties and those breaches caused injuries. The plaintiff's lawyer must show this through evidence gathered through pretrial discovery, which entails the disclosure of documents, including medical malpractice law firm records from all parties involved in the lawsuit. Depositions, where statements are made under oath and recorded for use at trial, are also a part of this procedure.

A doctor has breached their professional duty by doing something that an ordinary prudent doctor would not have done in the same circumstances. It must be proven that the breach was the cause of the injury directly to the patient. This is referred to as causation or proximate causes. A patient may go to the hospital in order to repair a hernia, and instead, have their gall bladder removed. This is medical malpractice as the removal of the gall bladder did not benefit the patient.

Medical malpractice lawsuits must be filed within a specific legal time limit, known as the statute of limitations. This is different from state to state. The patient who is injured must prove that the substandard care resulted in injury, and then he or she must prove the amount of financial compensation he or she is entitled to.

Damages

If medical negligence caused you to sustain an injury, you deserve to be made whole. 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 or summons, as well as other documents on all defendants. The parties participate in discovery. It is a process which involves the disclosure of documents and statements presented under oath. During discovery medical records and notes from a doctor will typically be sought.

In most states, to get compensation for injuries caused through malpractice, you need to prove four things that include a duty of care owed by the healthcare provider, a breach of this obligation; a causal connection between the breach and injury; and damages caused by the injury. If your attorney can establish all of these elements, you can make a an excellent case for financial recovery in a medical malpractice claim.

In certain cases, the court may make punitive damages a possibility that is designed to punish the wrongdoer and discourage others from committing similar acts. This is not the norm however, in medical malpractice cases. The courts must have a clear evidence of malice before they are able to decide to award these extraordinary damages.