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How to File a Medical Malpractice Case

A patient who discovers an object foreign to her body, such as surgical clamps inside her body following gall bladder surgery can sue for medical malpractice. A successful claim has to prove the elements of medical negligence: duty, deviation from the duty, and direct cause.

It is important for our clients to establish a direct connection between the breach of duty and the injury that is known as proximate causation.

The reason for injury

A medical malpractice lawsuit can be filed by the person who suffered the injury or an attorney. Based on the circumstances, it could be the spouse of the patient, an adult child or parent, a guardian ad litem or the executor or administrator of the estate of the patient who died. In a case involving medical malpractice the defendant is the health care provider. It could be an accredited nurse, doctor or therapist.

The majority of cases involving malpractice involve the testimony of experts. Medical experts must testify as to whether or whether the healthcare provider followed the standard of care for their particular area of expertise. They must also testify as to the harm that was caused by the actions or inactions of the doctor.

The consequences of negligence and mistakes can be devastating. An incorrect diagnosis can lead to serious consequences, including a life-threatening condition. Other types of injuries could include performing surgery on the wrong body part or leaving instruments inside the patient during surgery.

The patient must prove four legal elements in a malpractice claim which include a duty to the patient by the physician and a breach of that duty; an injury caused by the breach; and the resulting damages. In certain states, like New York, the law restricts the amount of money that can be awarded for an injury resulting from a malpractice claim.

Causation

The injury element is also known as the causation. It is among the most crucial elements in a medical malpractice claim. To establish causation, the plaintiff must prove that their injury was the result of the doctor's negligence. This can be a difficult task due to a variety of reasons.

For instance, many of the injuries that are the subject of a medical-malpractice lawsuit are the result of long-term or ongoing conditions that were present prior to the time of treatment. Often the statute of limitations for a medical malpractice claim is extended over a period of years and the injuries can develop gradually.

In these cases, proving that a medical professional's failure to adhere to the standard of care that led to the injury can be difficult. However, the aggrieved patient could be able to make use of evidence gathered by the attorney, like medical documents and expert testimony.

During the discovery process, which is a part of the legal procedure for preparation for trial, your lawyer can seek disclosure of expert testimony and other documents from the lawyers of the defendants. The doctor defending the lawsuit will then be required to testify in a deposition, which is testimony under an oath. Your lawyer can challenge doctor's findings and cross-examine them. The jury will decide whether the plaintiff has established the facts of the case including breach of duty, breach of contract and causation.

Negligence

If a claim for medical malpractice is filed the plaintiff must to convince the jury that it was more likely than not that the doctor breached his or her professional duties and that the breached duties caused harm. The lawyer for the plaintiff must demonstrate this by presenting evidence through pretrial discovery, which entails requesting disclosure of documents including medical records from all parties who are involved in the lawsuit. This process also involves sworn declarations that are recorded and used at trial.

A doctor violated his or her professional duty when he/she did something that a reasonably prudent doctor would not do under the same circumstances. It must be proven that the breach caused injury directly to the patient. This is referred to as causation or causal proximate causes. For instance an individual goes to the hospital for a hernia surgery and ends up having his or the gall bladder removed instead. This is medical negligence since the removal was not beneficial for the patient.

Medical malpractice lawsuits must be filed within a legally-defined period of time, called the statute of limitations, that varies from state to state. The patient who is injured must prove that the negligent care resulted in injury, and then he or she must show how much compensation they are entitled to.

Damages

If medical negligence caused you to suffer injury, you deserve to be compensated. Scaffidi & Associates can help you get fair and complete compensation for your losses.

The first step is filing and serving a complaint and summons on all defendants named in the lawsuit. The parties participate in discovery. This is where documents and statements are made public under an oath. Medical records and notes of the doctor are typically sought during discovery.

In the majority of states, to receive compensation for injuries caused by malpractice, you have to prove four things such as a duty of care that is due to the healthcare provider, a breach of this duty; a causal link between the breach and injury; and damages caused by the injury. If your lawyer can prove all of these elements, you can make a an extremely strong case for medical malpractice law firm financial compensation in a medical malpractice law firm negligence claim.

In some cases, courts can award punitive damages, which are intended to penalize the culprit and deter others from committing the same offense. But, this isn't often the case in medical malpractice cases since courts require clear evidence of malice to award these extraordinary awards.