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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 within her body after gall bladder surgery may make a claim for medical negligence. A successful lawsuit must prove the legal elements of medical negligence: duty, deviation from this duty, direct cause and injury.

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

The reason for injury

A medical malpractice lawsuit can be filed either by the person who suffered the injury or an attorney. Depending on the circumstances this could be a spouse of the patient or an adult child, parent, guardian ad litem or the executor or administrator of the estate of the deceased patient. The defendant in a lawsuit for medical malpractice is the health professional. It could be a licensed doctor, nurse or therapist.

Expert testimony is typically required in cases of malpractice. Medical experts must provide evidence to prove that the medical professional was acting in accordance with the standards of care in his or her specific area of expertise. They must also testify regarding injuries caused by physician's actions or inactions.

The consequences of malpractice and negligence can be quite severe. For example, a mistake in the diagnosis of a health condition can cause life-threatening complications. Other types of injuries could include operating on the wrong body part or putting instruments inside the patient during surgery.

In order to prove a malpractice case the patient must demonstrate four legal elements: a duty that the physician owed to them; a breach of this duty, resulting injury; and damages. In certain states, such as 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 demonstrate that their injury was caused by a physician's negligence. This can be a challenging task due to a variety of reasons.

For example, many injuries that are the subject of a medical malpractice lawsuit arise from long-term or ongoing ailments that were present prior to treatment. Often the statute of limitations for a claim involving medical malpractice extends over a number of years and the injuries can develop gradually.

In these cases it is difficult to prove that a medical professional's breached the standard of care and led to the injury is difficult. The attorney could have gathered evidence, such as medical records and expert testimony that the injured person can utilize.

During the discovery process which is an element of the legal procedure for preparation for a trial, your lawyer may 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 asked to give a deposition. This is a testimonies that is made under the oath. Your lawyer will be able to cross-examine doctor Medical malpractice lawsuits and contest their conclusions. The jury will decide if the plaintiff has proven the facts of the case including breach of duty, breach of contract and causation.

Negligence

The plaintiff must convince the jury, when bringing a lawsuit for medical malpractice, that it is more than likely that the physician violated his or her duties as medical professional and that these violations caused injury. The plaintiff's lawyer has to demonstrate this with evidence gathered through pretrial discovery, which entails requesting disclosure of documents including medical records from all parties who are involved in the lawsuit. Depositions, in which the statements are made under oath, and recorded to be used at trial, are also part of this procedure.

A doctor has breached their professional duty when they did something that a reasonable prudent physician would not have done in the same circumstances. However, it must be proven that the breach directly caused the injury to the patient. This is referred to as causation or proximate causes. For instance an individual goes to the hospital for a hernia surgery and is then able to have his or his gall bladder removed instead. This is medical malpractice as the removal of the gall bladder was not beneficial to the patient.

Medical malpractice lawsuits must be filed within a legally prescribed period of time, called the statute of limitations that varies from state to state. The victim must demonstrate that the treatment was substandard and caused injury, and then they must prove what monetary compensation they are entitled to.

Damages

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

The first step is to file and serve the complaint and summons to all defendants named in the lawsuit. The parties are involved in discovery. It is a process where documents and evidence are presented under oath. During discovery, medical records and notes from a doctor are typically requested.

In the majority of states, to be eligible for compensation for injuries incurred through malpractice, you need to prove four things including a duty of good faith owed by the healthcare provider, a breach of this duty; a causal link between the breach and injury and damages that result from the injury. If your lawyer can demonstrate all of these elements in a medical negligence claim, you'll have a strong case.

In certain cases, courts can award punitive damages, which are intended to penalize the wrongdoer and deter others from committing the same offense. It is not common, however, in medical malpractice cases. The courts must have very clear evidence of intent to commit a crime before they are able to award these extraordinary damages.