What NOT To Do When It Comes To The Medical Malpractice Litigation Industry

Four Elements of a medical malpractice attorneys Malpractice Case

Malpractice lawsuits are a real and lawsuits serious threat to doctors. They can increase insurance costs for doctors as well as alter the practice of medicine.

In general, lawsuits doctors have a duty to their patients to adhere to accepted medical practices. This is referred to as the "standard of care.

To successfully sue a doctor for malpractice, the patient must prove each of the following legal elements with the preponderance evidence: duty; breach of duty; causation; damages.

Duty of Care

The most important element of a medical negligence claim is that the victim was legally obligated by the doctor that was breached. Contrary to other types of negligence cases medical malpractice claims typically require the relationship between a doctor and patient, which can be established through things like medical records and phone consultations. In general, doctors who treat their patients must adhere to the accepted guidelines in their field and practice.

However, doctors can also be held accountable for the negligence of their staff members, such as assistants or interns. They could also be held accountable for the actions of emergency personnel under their supervision.

The plaintiff then has to show that the defendant's conduct did not meet the standard care under the circumstances. This is a fact that can be demonstrated through expert testimony on acceptable medical practices and the defendant's failure to follow these guidelines. The second aspect of malpractice is that the breach directly caused injury to the patient. To prove malpractice the lawyer you hire to prove that the breach of duty by the defendant directly caused your injury or death of your loved one. This is referred to as proximate cause. For instance, if the alleged negligent treatment wouldn't have had a negative effect on your health irrespective of whether it was performed or not, you wouldn't be able to claim damages for any injuries or wrongful deaths that were allegedly caused by the physician's conduct.

Breach of Duty

A physician who fails to perform their duty of professional care to a patient could be held accountable for negligence. To win a medical malpractice lawsuit, the injured person must prove four legal aspects that a duty of care or professional care was owed and the doctor violated this obligation; the breach led to injury; and the injury was a cause of damages. The first element of a medical malpractice lawsuit is the standard of care which is determined through experts' testimony. The standard of care is what an "reasonably cautious" doctor would do under similar or identical circumstances.

The physician's breach of this duty occurs when he is not following the standard of care when rendering treatment to the patient. For example, if the doctor breaks a patient's arm and isn't able to properly set it or fails to cast the broken arm. A breach by the doctor causes the broken arm heal incorrectly. This could result in either a complete or partial loss of usage, and also financial damages.

Medical malpractice cases are brought in state trial courts, however under limited circumstances, federal courts may also consider these claims. The 94 federal districts courts across the United States each have a judge and jury panel that hears these cases. The majority of states have a special system of state courts that deal with these cases. However, they follow different rules of court procedures than federal district courts.

Causation

Physicians take an oath to do no harm, and should they violate this duty and cause harm the patient could be entitled to compensation for damages. A medical malpractice lawsuit could also arise when a doctor decides to administer a procedure that carries known risks, and the patient could have refused the procedure if fully informed of the potential consequences.

In a lawsuit for medical malpractice the plaintiff must demonstrate that the doctor's actions were not in accordance with accepted standards of practice. The failure to follow the standard of care must have been the direct cause of any injury or illness suffered by the patient and the ailment would never be the case if it wasn't because of the doctor's negligence. This burden of proof, referred to as "preponderance" of the evidence is less arduous than "beyond reasonable doubt" that is required to convict criminal defendants.

Medical malpractice lawsuits typically require expert witness testimony as well as lengthy discovery procedures prior to trial. In the event that the case settles or goes to trial, attorneys on both sides spend considerable time and resources in preparing for the matter. This is one reason that malpractice claims are costly for both the plaintiff and the physician involved, and is one of the reasons that physicians and health care organizations support efforts to reform tort law in the United States.

Damages

Depending on the type of medical negligence, victims can seek compensatory or punitive damages. Compensatory damages compensate patients for financial losses and expenses resulted from the negligence of the doctor which includes loss of income or the expense of future medical treatment. Non-economic damages are compensation for physical pain as well as mental stress.

Medical malpractice lawsuits are usually filed in a state court of trial. However, there are instances where a suit could be filed in federal court. It's usually the case when doctors are employed by a federally-funded clinic, like the Veteran's administration or if the doctor is from other country, but practices in the United States as part of an extraterritorial treaty.

Lawsuits alleging medical malpractice are largely adversarial in nature and require an extensive legal discovery. This can include written interrogatories and depositions, as well as requests for documents. Victims of alleged medical malpractice attorney negligence will also have to bear the pressure of the jury trial, and possibly be at risk of being denied their claim by a judge or dismissed by a jury.

You must establish that medical negligence or mistake caused your injury to be able to make a case for medical negligence. The harm must be serious enough that a cash award will substantially compensate for your financial losses and emotional distress. New York medical malpractice law also has specific damages caps and limits to the amount that patients can be awarded after proving a claim.