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How to File a Medical Malpractice Case

A patient who discovers that an object that is foreign like surgical clamps, remains inside her body after gall bladder surgery may file a medical malpractice lawsuit. A successful claim must prove the elements of medical malpractice attorney negligence: duty, deviation from the duty, and direct reason.

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

The reason for injury

A medical malpractice lawsuit can be filed by the victim or an attorney. Based on the specific circumstances, this may be the spouse of the patient or an adult child parent, a guardian ad litem or the administrator or executor of the estate of the deceased patient. In a medical malpractice case, the defendant is the health care provider. This could be an accredited nurse, doctor or therapist.

Expert testimony is often required in malpractice cases. Medical experts must be able to testify that the doctor was acting in accordance with the standards of care in their specific field of expertise. They also have to testify to the harm caused by the actions or inactions of a doctor.

Injuries that result from malpractice or negligence can be quite severe. A misdiagnosis can have serious consequences, such as an illness that could be life-threatening. Other types of injuries can involve operating on the wrong body part or leaving surgical instruments inside the patient.

To establish a malpractice case the patient must demonstrate four legal elements: a duty the physician owed to them; a breach in this duty; a subsequent injury; and damages. In certain states like New York the law limits the amount of money that can be awarded for a malpractice case.

Causation

The element of injury is known as the causation. It is one of most crucial aspects of a medical malpractice claim. To establish causation the plaintiff must prove that their injury was the result of the doctor's negligence. This is a challenging job due to various reasons.

For instance, many injuries that are the subject of a medical malpractice lawsuit are the result of long-term or ongoing illnesses that were present prior to treatment. The statute of limitations on a medical malpractice lawsuit can be extended for a number of years and injuries can develop slowly.

In these cases, it is difficult to prove that a certain medical professional's breach of the standards of care caused the injury. The attorney may have gathered evidence, such as medical records and expert testimony that the injured person may use.

During the discovery procedure, which is a part of the legal procedure for prepping 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 defending the case will be required to give a deposition. This is a declaration which is under oath. Your lawyer is able to cross-examine doctor and contest the doctor's findings. The jury will then decide if the plaintiff has established the essential elements of their case such as the duty of care, breach, causation and injury.

Negligence

The plaintiff must convince jurors, in a case of medical malpractice in court, that it is likely that the doctor violated his or her responsibilities as a doctor and that these mistakes led to injuries. The attorney representing the plaintiff must be able to prove this by utilizing evidence gathered during pretrial discovery. This includes requesting documents, including medical records as well as other documents from all parties in a lawsuit. This also includes the recording of sworn statements and used in trial.

A doctor has violated their professional duty if they did something a reasonable prudent physician would not have done in similar circumstances. However it must be proved that the breach directly caused the injury to the patient. This is referred to as causation or proximate cause. For instance when a patient is taken to the hospital for a hernia procedure and ends up having his or the gall bladder removed instead. This is medical malpractice as the removal of the gall bladder did not benefit the patient.

Medical malpractice suits must be filed within the legal period, referred to as the statute of limitations. This is different from state to state. The patient who was injured must show that the inadequate treatment resulted in injury, and after that they must show what compensation they deserve.

Damages

If medical negligence has led you to suffer an injury, you are entitled to be made whole. Scaffidi & Associates can help you receive full and fair compensation for your losses.

The first step is filing and serving a complaint and summons on all defendants named in the lawsuit. The parties then proceed to discovery, a procedure in which documents and statements are revealed under the oath. Medical records and doctor's notes are typically requested during discovery.

In most states, you need to demonstrate four elements in order to be compensated for injuries incurred by medical malpractice which includes a duty to the healthcare provider in breach of that obligation; a causal connection between the breach and the patient's injury and damages resulting from the injury. If your attorney can establish all of these elements, you can make a a strong case for financial compensation in a medical malpractice claim.

In certain cases courts may award punitive damages, which are designed to punish the culprit and deter others from engaging in similar conduct. This is not the norm, however, in medical malpractice cases. The courts must have a clear evidence of malice before they may give these extraordinary damages.