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How to File a Medical Malpractice Case

If a patient discovers that an object that is foreign, such as surgical clamps, remains in her body after gall bladder surgery can file a medical malpractice lawsuit. A successful lawsuit must establish the elements of medical negligence: duty, deviation from the duty, and direct cause.

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

The reason for injury

A medical malpractice claim may be filed either by the injured person or a legal representative. Depending on the circumstances, this may be the spouse of the patient or an adult child, parent, guardian ad litem or the administrator or executor of the estate of the patient who died. The defendant in a medical malpractice suit is the health care provider. This could be a licensed doctor, nurse or therapist.

Expert testimony is often required in cases of malpractice. Medical experts are required to testify whether or the medical professional adhered to the standards of care in their specific field. They also have to testify to the harm resulting from the actions or inactions of a doctor.

Accidents caused by negligence or malpractice can be severe. A misdiagnosis could have grave consequences, including a life-threatening condition. Other types of injuries include operating on the wrong part or putting instruments inside the patient during surgery.

In order to establish a malpractice claim, the patient must prove four legal elements: a duty the physician owed to them; a breach of this duty; a resultant injury; and damages. In some states, like New York, the law places a limit on the amount that can be awarded in an injury resulting from a malpractice claim.

Causation

The injury element is called the causation. It is among the most important aspects of a medical malpractice law firm malpractice claim. To prove causation, the plaintiff must demonstrate that they sustained the injury on the basis of probabilities because of the negligence of a physician. This can be a challenging task due to a variety of reasons.

A lot of the injuries that form the basis of medical negligence lawsuits result from chronic illnesses that existed before treatment started. The time period for filing a medical malpractice lawsuit can be extended over a period of time and the development of injuries can happen slowly.

In these cases it is often difficult to prove that a specific medical professional's failure to adhere to the standard of care led to the injury. However, the aggrieved patient could be able to use evidence gathered by the attorney, such as medical records and expert testimony.

During the discovery process as part of the legal process for the preparation of a trial your lawyer may request that the lawyers for the defendants be made aware of expert testimony and other documents. The doctor defending the lawsuit is then asked to give evidence during depositions, which are testimony given under an oath. Your lawyer will be able to challenge the doctor's findings and cross-examine them. The jury will decide whether the plaintiff has substantiated that the allegations of the case are true, including duty, breach and causation.

Negligence

The plaintiff must convince the jury when bringing a claim for medical malpractice to show that it is likely that the doctor acted in violation of his or her duties as a physician and that those breaches resulted in injury. The plaintiff's lawyer must demonstrate this using evidence gathered during discovery. This includes requesting documents, including medical records as well as other documents from all parties in the lawsuit. This process also includes swearing statements that are recorded and used in trial.

A doctor was in breach of his or her professional obligation if he or she did something that a reasonable prudent physician would not do under 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 cause. For example an individual goes to the hospital for a hernia surgery and is then able to have his or her gall bladder removed instead. This is medical malpractice since 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 caused injury, and they have to prove the amount of compensation they're entitled to.

Damages

If medical negligence has led you to sustain an injury, you deserve to be made whole. 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 a process where documents and evidence are revealed under oath. During discovery medical records and doctor's notes are typically requested.

In many states, to get compensation for injuries caused through malpractice, you need to establish four elements including a duty of good faith owed by the healthcare provider, a breach of this obligation; a causal connection between the breach and injury; and damages resulting from the injury. If your lawyer can prove all these elements in a medical negligence claim, you will have an enviable case.

In certain instances the court might give punitive damages that is intended to punish the wrongdoer and discourage others from committing similar crimes. But, this isn't often the case in medical malpractice cases, as courts require clear evidence of malice to give these extraordinary awards.