How to File a Medical Malpractice Case

A patient who discovers that an object that is foreign like surgical clamps, remains inside her body after gall bladder surgery could bring a medical malpractice lawsuit. A successful lawsuit must prove the legal elements of medical negligence: duty, deviance 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 reason.

The reason for injury

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

Malpractice cases usually require many expert witnesses. Medical experts are required to testify whether or whether the health professional adhered to the standards of care for their particular field. They also have to testify to the damage caused by the doctor's actions or inactions.

The injuries that result from malpractice and negligence can be extremely serious. An incorrect diagnosis can lead to serious consequences, such as the possibility of a life-threatening illness. Other types of injuries can include operating on the wrong body part or leaving surgical instruments inside the patient.

The patient must establish four legal elements of a malpractice lawsuit that include a duty owed to the patient by the physician or a breach of the obligation; a harm caused by the breach; and the consequential damages. In certain states, like New York the law limits the amount of money awarded in a malpractice case.

Causation

The injury element is known as the causation. It is one of most important aspects in a medical malpractice claim. To establish causation the plaintiff must prove that their injury was caused by a physician's negligence. This can be a challenging job due to a variety of reasons.

For example, many injuries that are the basis of a medical malpractice lawsuit are the result of long-term or ongoing conditions that were present prior to the time of treatment. The time period for filing a medical malpractice lawsuit can be extended for a number of years and injuries can develop slowly.

In these cases, proving that a medical professional's breached the standard of care that led to the injury is difficult. The attorney may have collected evidence, such as expert testimony and medical records, that the injured patient could use.

During the discovery process, which is a component of the legal procedure prepping for trial, your lawyer can request disclosure of expert testimony and other documents from the lawyers of the defendants. The doctor defending the lawsuit will then be asked to testify during deposition, which is testimony under oath. Your lawyer will be able to cross-examine doctor and contest the doctor's findings. The jury will decide whether the plaintiff has proved all the elements of the case including breach of duty and causation.

Negligence

The plaintiff must convince jurors, in a case of medical malpractice in court, that it is more likely that the doctor did not fulfill his or her duties as a physician and that those actions led to injury. The plaintiff's lawyer must demonstrate this with evidence gathered through pretrial discovery, which involves asking for disclosure of documents such as medical records from all parties involved in the lawsuit. Depositions, in which statements are made under oath, and recorded to be used at trial, are also a part of this procedure.

A doctor was in breach of his or her professional duty when he or she did something that a prudent doctor would not do in similar circumstances. However it must be proved that the breach directly caused injury to the patient. This is referred to as causation or the proximate cause. A patient might go to the hospital in order to repair a hernia, but end up having their gall bladder removed. This is medical malpractice because the removal of the gall bladder did not benefit the patient.

Medical malpractice lawsuits must be filed within a legally regulated period of time, also known as the statute of limitations, which varies by state. The victim must demonstrate that the treatment was substandard and caused injury, then they must show what compensation they're entitled to.

Damages

You are entitled to compensation for any injuries that you've suffered as a result of medical malpractice law firms negligence. At Scaffidi & Associates, we will assist you in receiving full and fair compensation for your loss.

The first step in a lawsuit is to file and serve a complaint or summons, as well as other documents on all defendants. The parties then engage in discovery. This is a process in which documents and declarations are made public under oath. Medical records and the notes of a doctor are typically requested during discovery.

In most states, to be eligible for compensation for injuries incurred through malpractice, you need to establish four elements such as a duty of care that the healthcare provider is obligated to perform and a breach of that duty; a causal link between the breach and injury and damages resultant from the injury. If your attorney can establish all of these elements, then you've got an excellent case for financial compensation in a medical malpractice claim.

In some instances the court might award punitive damage which is intended to punish a wrongdoer, and discourage others from committing similar conduct. This is not the norm however, in medical malpractice cases. The courts must have very clear evidence of malice before they may decide to award these extraordinary damages.