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How to File a Medical Malpractice Case

A patient who discovers a foreign object such as surgical clamps in her body following gall bladder surgery can sue for medical negligence. A successful claim must establish the legal elements of medical negligence: duty, deviance from this duty, direct cause, and injury.

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

Cause of Injury

A claim for medical malpractice can be filed either by the person who suffered the injury or a legal representative. It could be the spouse or adult child or parent, guardian or administrator of the estate of a deceased patient depending on the circumstances. The plaintiff in a suit for medical negligence is the health professional. This could be a nurse, doctor, therapist or any other licensed health care professional.

Expert testimony is typically required in malpractice cases. Medical experts must provide evidence to prove that the health care provider did what was required of care in his or her special area of expertise. They also have to testify to the damage caused by the actions or inactions of a doctor.

Accidents caused by negligence or mistakes can be devastating. A mistake in diagnosis can have devastating consequences, such as the possibility of a life-threatening illness. Other kinds of injuries include operating on the incorrect body part or leaving surgical instruments inside the patient.

The patient must prove four legal elements in a malpractice claim that include a duty owed to the patient by the physician and a breach of this duty; injury caused by the breach; and resulting damages. In some states such as New York the law limits the amount of money awarded for a malpractice case.

Causation

The injury element, also known as causation, is one of the most important elements in a medical malpractice case. To establish causation the plaintiff must prove that their injury was the result of the doctor's negligence. This is a challenging task for several reasons.

Many of the injuries that are the basis for medical negligence lawsuits result from chronic issues that existed before treatment began. Often the statute of limitations for a medical malpractice claim extends over a number of years and the injuries can develop gradually.

In these instances it is often difficult to prove that a particular medical professional's failure to adhere to the standards of care caused the injury. The attorney could have collected evidence, such as medical records and expert testimony that the injured person can use.

During the discovery process, which is part of the legal procedure getting ready for trial, your lawyer will request disclosure of expert testimony as well as other documents from lawyers representing the defendants. The doctor defending the lawsuit is then asked to give evidence during deposition, which is testimony given under an oath. Your lawyer can challenge doctor's findings and cross-examine them. The jury will then decide if the plaintiff has proved the essential elements of their claim, which includes the duty of care, breach, causation and injury.

Negligence

When a medical malpractice claim is filed in court, the plaintiff must to convince the jury that it was more likely than not that the doctor violated professional duties and those breaches caused harm. The attorney representing the plaintiff must be able to prove this by utilizing evidence gathered during pretrial discovery. This includes requesting documents, including medical malpractice Law firms records, from all parties involved in the lawsuit. Depositions, in which the statements are made under oath and recorded for use in trial, are also a part of this process.

A doctor violated his or her professional obligation when he/she did something that a reasonably prudent doctor would not do under the same circumstances. However, it must be proven that the breach directly caused injury to the patient. This is known as causation or proximate cause. For instance, a patient goes to the hospital for a hernia procedure and is later told that he or her gall bladder removed instead. This is medical malpractice lawyer negligence because the removal did not benefit the patient.

Medical malpractice lawsuits must be filed within a legally defined period of time, called the statute of limitations which varies by state. The person who has suffered injury must prove that the care provided was substandard and resulted in injury, and then he or she must prove how much monetary compensation he or she deserves.

Damages

If medical negligence has led you to sustain an injury, you are entitled to be made whole. Scaffidi & Associates can help you receive fair and full compensation for your losses.

The first step is filing and serving a complaint and summons on all named defendants in the lawsuit. The parties then engage in discovery. It is a process where documents and statements are presented under the oath. During discovery medical records and doctor's notes will typically be sought.

In most states, in order to be eligible for compensation for injuries incurred through malpractice, you need to establish four elements such as a duty of care due to the healthcare provider and a breach of that duty; a causal link between the breach and injury; and damages caused by the injury. If your attorney can establish all of these elements, you can make a an extremely strong case for financial recovery in a claim for medical malpractice.

In certain instances the court can give punitive damages, which are intended to punish the offender and deter others from engaging in similar misconduct. This isn't often however, particularly in medical malpractice cases. The courts must have very clear evidence of malice before they may award these extraordinary damages.