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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, is still inside her body after gall bladder surgery could file a medical malpractice lawsuit. A successful lawsuit must prove the legal aspects of medical negligence: duty, deviance 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.

The reason for injury

A medical malpractice lawsuit can be filed either by the injured person or a legal representative. This can be the spouse or adult child or parent, guardian or administrator of a deceased patient's estate depending on the circumstances. In a medical malpractice case the defendant is the health care provider. This could be a nurse, doctor or therapist, or any other licensed health professional.

Malpractice cases usually require many expert witnesses. Medical experts must be able to testify that the healthcare provider did what was required of medical care within their particular field of expertise. They must also testify to the damage caused by the doctor's actions or inactions.

Injuries caused by negligence and mistakes can be devastating. For example, a mistake in the diagnosis of a medical condition could have life-threatening effects. Other types of injuries could include operating on the wrong part or leaving instruments inside the patient during surgery.

In order to establish a malpractice claim the patient must demonstrate four legal elements: a duty the doctor owed to them; a breach in this duty, resulting injury and damages. In certain states, such as New York the law limits the amount of money that can be awarded in 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 the injury was caused by a physician's negligence. This can be a difficult task for a number of reasons.

For instance, many of the injuries that are the cause of a medical negligence lawsuit arise from long-term or ongoing illnesses that were in the process of being treated prior to. Often, the statute of limitations for a medical negligence claim extends out over a number of years, and the injuries can develop gradually.

In these instances, proving that a medical professional's failure to adhere to the standard of care which led to the injury is not easy. The attorney may have gathered evidence, such as expert testimony and medical records, that the injured patient may use.

During the process of discovery that is part of the legal procedure for preparing for a trial, your lawyer may request that the defendants' lawyers disclose expert testimony and other documents. The doctor who is defending the case will be required to appear in a deposition. This is a statement that is made under the oath. Your lawyer can challenge the doctor's findings and cross-examine them. The jury will decide whether the plaintiff has established the elements of the case including breach of duty and causation.

Negligence

When a medical malpractice law firms malpractice claim is filed the plaintiff must to convince the jury that it was more likely than not that the physician breached his or her professional duties and that those violations caused harm. The attorney representing the plaintiff must prove this by using evidence gathered during pretrial discovery. This involves seeking documents, such as medical records from all parties involved in a lawsuit. Depositions, in which 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 similar circumstances. It must be proved that the breach caused injury directly to the patient. This is known as causation or the proximate cause. For example the patient is admitted to the hospital for a hernia operation and then has his or her gall bladder removed instead. This is medical negligence since the removal did not benefit the patient.

Medical malpractice suits must be filed within a specific legal period, referred to as the statute of limitations. This differs from state to state. The person who suffered the injury must show that the inadequate treatment caused injury, and they must show what compensation they're entitled to.

Damages

If medical negligence has caused you to sustain an injury, you deserve to be made whole. At Scaffidi & Associates, we can help you receive full and fair compensation for your losses.

The first step is filing and serving the complaint and summons to all defendants named in the lawsuit. The parties are involved in discovery. This is a procedure in which documents and declarations are made public under the oath. During discovery medical records and notes from a doctor are usually requested.

In the majority of states, you must prove four things to be compensated for any injuries caused by medical malpractice that is a duty owed by the healthcare provider and a breach of the obligation; a causal connection between the breach and the patient's injury as well as damages that result from the injury. If your attorney can establish all of these elements, then you've got an excellent case for financial recovery in a medical malpractice case.

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