5 Medical Malpractice Settlement Leçons From The Professionals

How to File a Medical Malpractice Case

A patient who discovers an object that is foreign, for example, surgical clamps in her body after gall bladder surgery is able to sue for medical malpractice. A successful lawsuit must prove the legal elements of medical negligence: duty, deviation from this obligation, direct cause and injury.

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

Cause of Injury

A medical malpractice claim can be filed either by the injured person or an attorney. This could be the spouse or adult child or parent, guardian or administrator of the estate of a deceased person depending on the circumstances. The defendant in a suit for medical malpractice lawsuit negligence is the health care provider. It could be an accredited doctor, nurse or therapist.

Expert testimony is usually required in malpractice cases. Medical experts are required to provide evidence to prove that the doctor did what was required of care in their specific area of expertise. They must also testify as to the damage caused by the doctor's actions or inactions.

Accidents caused by negligence or mistakes can be catastrophic. A misdiagnosis could have grave consequences, including an illness that could be life-threatening. Other kinds of injuries include operating on the incorrect body part or putting surgical instruments in the patient.

To prove a malpractice claim the patient must prove four legal elements: a duty the doctor owed to them; a breach in this duty, resulting injury; and damages. In certain states, like New York the law limits the amount of money awarded in a malpractice case.

Causation

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

Many of the injuries that form the basis for medical negligence lawsuits result from long-term illnesses or conditions which were present before treatment started. The time limit for a medical malpractice case can be extended over several years and injuries can develop slowly.

In these cases it can be difficult to prove that a specific medical professional's failure to adhere to the standard of care caused the injury. The attorney may have gathered evidence, like expert testimony and medical records, that the injured patient could use.

During the discovery process, which is part of the legal procedure preparation for lawsuits trial, your lawyer may ask for the disclosure of expert testimony as well as other documents from defense attorneys of the defendants. The doctor who is defending the case will be required to take a deposition. This is a testimonies that is made under oath. Your lawyer can challenge doctor's findings and cross-examine them. The jury will decide whether the plaintiff has proved the facts of the case, including duty, breach and causation.

Negligence

When a medical negligence claim is filed in court, the plaintiff must to convince the jury that it was more likely than not that the physician committed a breach of professional duties and that those breaches caused harm. The lawyer for the plaintiff must show this through evidence gathered through pre-trial discovery, which involves the disclosure of documents, including medical malpractice attorney records from all parties involved in the lawsuit. Depositions, in which statements are made under oath and recorded to be used at trial, are also a part of this procedure.

A doctor has violated his or her professional obligation when he/she did something that a prudent physician would not do under the same circumstances. It must be proved that the breach caused injury directly to the patient. This is known as causation or proxy causes. For instance the patient is admitted to the hospital for a hernia surgery and then has his or his gall bladder removed instead. This is medical negligence because the procedure was not beneficial to the patient.

Medical malpractice lawsuits must be brought within a legally defined period of time, also known as the statute of limitations, which varies by state. The patient who was injured must demonstrate that the treatment was substandard and resulted in injury, and after that they must show what compensation they deserve.

Damages

If medical negligence has led you to suffer injury, you are entitled to be compensated. At Scaffidi & Associates, we can assist you in obtaining the full and fair compensation you deserve for your losses.

The first step in a lawsuit is to file and serve a complaint, summons and other documents on all defendants. The parties engage in discovery. This is a process where documents and lawsuits statements are disclosed under an oath. During discovery medical records and notes from a doctor will typically be sought.

In most states, you have to demonstrate four elements in order to be compensated for injuries incurred by medical malpractice such as a duty due to the healthcare provider; a breach of that duty; a causal relationship between the breach and the patient's injury and damages resulting from the injury. If your lawyer can prove all of these elements, you have an extremely strong case for financial recovery in a medical malpractice case.

In certain cases courts may award punitive damages, which are intended to punish the perpetrator and discourage others from engaging in similar conduct. It is not common however, in medical malpractice cases. The courts must have clear evidence of malice before they are able to award these extraordinary damages.