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If a patient discovers that a foreign object like surgical clamps, is still inside her body following gall bladder surgery can file a medical malpractice lawsuit. A successful claim must establish the legal elements of medical negligence: duty, deviation from this duty, direct causes, and injury.
Our clients must establish a direct connection between the breach of duty, and the injury. This is referred to as the proximate cause.
The reason for injury
A medical malpractice claim may be filed by the victim or an attorney. It could be the spouse, adult child parent, guardian, or administrator of a deceased patient's estate, based on the circumstances. In a medical malpractice case, the defendant is the health care provider. This could be a nurse, doctor, therapist or any other licensed health professional.
Expert testimony is often required in cases of malpractice. Medical experts must provide evidence to prove that the doctor was acting in accordance with the standards of care in their specific area of expertise. They must also testify about injuries caused by physician's actions or inactions.
Injuries that result from malpractice or negligence can be very severe. For instance, a wrong diagnosis of a health condition can have life-threatening effects. Other types of injuries include operating on the wrong body part or putting surgical instruments in the patient.
To prove a malpractice case the patient must prove four legal elements: a duty the physician owed to them; a breach of the breach; a resulting injury and damages. In some states such as New York the law limits the amount of money that can be awarded in a case of malpractice.
Causation
The injury element, also known as causation, is one the most important elements in medical malpractice cases. To prove causation, the plaintiff must prove that their injury was caused by a physician's negligence. This is a challenging task for several reasons.
For instance, many injuries that are the subject of a medical-malpractice lawsuit arise from long-term or ongoing ailments that were present before treatment began. Often the statute of limitation for a claim involving medical malpractice extends over a variety of years and the injuries may develop slowly.
In these cases it is often difficult to prove that a specific medical professional's breach of standard of care led to the injury. The attorney may have gathered evidence, including medical records and expert testimony, that the injured patient could use.
During the discovery procedure which is an element of the legal procedure for preparation 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 testify in deposition. This is a testimony that is made under oath. Your lawyer may cross-examine the doctor and challenge their findings. The jury will then decide whether the plaintiff has proven the essential elements of their case, including the duty of care, breach, causation and injury.
Negligence
When a medical malpractice claim is filed the plaintiff has to convince the jury that it was more likely than not that the doctor violated professional duties and that those breaches resulted in injury. The attorney representing the plaintiff must demonstrate this through evidence collected during discovery. This involves soliciting documents, including medical malpractice attorney records, from all parties involved in a lawsuit. Depositions, in which statements are made under oath, and recorded for use in trial, are also part of this procedure.
A doctor violated the professional duties of a doctor when he or she did something that a prudent doctor would not do under the same circumstances. It must be established that the breach caused the injury directly to the patient. This is referred to as causation or proximate cause. A patient may visit a hospital to repair a hernia, however, they end up having their gall bladder removed. This is medical negligence since the procedure was not beneficial to the patient.
Medical malpractice lawsuits must be brought within a legally-defined period of time, also known as the statute of limitations which varies by state. The victim must prove that the substandard care caused injury, and then he or she must prove how much monetary compensation he or her deserves.
Damages
If medical negligence has caused you to suffer an injury, you should be made whole. Scaffidi & Associates can help you get fair and complete compensation for your losses.
The first step is to file and serve an order and complaint on all named defendants in the lawsuit. The parties participate in discovery. This is a procedure in which documents and declarations are presented under an oath. medical malpractice attorney records and notes of a doctor are typically requested during discovery.
In the majority of states, you must establish four elements to be compensated for injuries incurred by medical malpractice: a duty owed by the healthcare provider and a breach of the duty; a causal link between the breach and the injury suffered by the patient; and damages that flow from the injury. If your attorney can prove all of these elements in a medical malpractice claim, you will have an impressive case.
In certain instances the court might give punitive damages which is intended to penalize a wrongdoer and deter others from engaging in similar crimes. This isn't often however, particularly in medical malpractice cases. The courts must have a clear evidence of malice before they are able to give these extraordinary damages.
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