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Bringing a medical malpractice suit against a hospital or doctor requires proof that the defendant violated his or her duty to patients. This evidence could include hospital and medical records.
Our lawyers are adept at taking depositions that are effective for witnesses. They could be doctors or other medical professionals in private practice or work at a clinic or hospital.
Negligence
Patients have the right to be treated with respect to certain standards when they visit a hospital, doctor or health care professional. Unfortunately these standards aren't always met, or even violated. The consequences of this breach can be devastating.
A lawsuit can be brought against a medical professional if an injured patient dies due to the malpractice of the physician. To be able to file a valid lawsuit the patient who has been injured must establish four legal elements which are breach of duty, duty, damages and causation.
Malpractice is defined as an act or malpractice omission of the physician that goes against the norms of practice accepted in the medical community, and results in injury to the patient. It is a part of tort law, which deals with civil wrongs but not criminal or contractual obligations.
Medical negligence is different from normal negligence in that the person who is injured has to prove that the doctor was aware, or ought to have known that their actions were going to cause harm before they are able to claim malpractice. Normal negligence is not a requirement. A surgeon who accidentally cuts or nicks the nerve or vein during surgery is guilty of negligence but not malpractice. This is because the surgeon didn't intend to hurt anyone.
In the event of a medical malpractice lawsuit the defendant's obligation is to treat the patient according with the standard of care a knowledgeable health professional with similar experience and qualifications would provide in similar circumstances. The breach of this duty is an essential aspect because it proves that the negligent act caused the injury.
Damages
In a malpractice case, damages are calculated based on the amount you've suffered caused by a doctor's negligence. This can include both financial losses, such as future medical costs, as well as non-economic losses like discomfort and pain.
In order to recover damages, you must show that the doctor violated a duty of care, that the doctor's deviation from the standard resulted in injury, and that the injury was measurable in terms of financial consequences. This is a difficult legal analysis that usually requires expert witness testimony.
Some of these losses can be identified immediately, for example, if a doctor's mistake resulted in an infection or any other medical condition that required further treatment. Other damage isn't as obvious, for instance if your doctor misdiagnoses you, and you're unable to receive the proper treatment.
You can sue for wrongful death when a doctor's negligence caused your death. You can claim punitive damages in addition to the money you'd get in a lawsuit for survival.
In many states, there are restrictions on what you can receive in a malpractice claim. These caps vary state-to-state and typically apply to both economic and non-economic damages. Certain states have laws that limit the length of time you can wait before filing a lawsuit.
Time Limits
Like any lawsuit, there are deadlines that must be followed or the case could be dismissed. A malpractice lawsuit is required to be filed between two and six years after the incident occurred. The time frame varies by state.
It is crucial to consult an attorney as soon as possible. The law firm will conduct an investigation to determine whether a mistake was committed and if it could hold up in the court. This process can take weeks or even months.
Medical malpractice cases involve different laws than other types of cases and often the statute of limitation is modified. For instance in Pennsylvania the patient has to file a claim within two years from the day they discovered the malpractice or when a reasonable person would have recognized that the harm existed. This is known as the discovery rule.
In other states, the statute of limitations begins at the time the malpractice happened. This is an issue if the error does not immediately trigger symptoms. As an example, suppose a doctor negligently leaves an object foreign to the body following surgery. The patient may not discover the foreign object until three or more years after surgery. In that situation the statute of limitations could have expire from the date the surgery, not from the time of discovery of the error.
Expert Witnesses
Expert witnesses are frequently required to explain facts in medical malpractice cases. An expert witness for the plaintiff will testify about the duty of the doctor towards the patient, medical guidelines for doctors who have similar qualifications in the same area and specialization, and the ways in which the defendant departed from the standards. The expert will explain how the deviance directly led to the injury suffered by the patient.
The defendant will engage an expert to challenge the plaintiff's expert and provide their professional opinion on whether or not the doctor was in compliance with the standards of care. The experts may disagree however the fact-finder determines which expert is most reliable.
It is recommended for the expert to be working in the medical field because they are more knowledgeable about the current practices. Judges and jurors tend to find practicing professionals more credible than experts who rely only on court testimony.
It is also recommended to get an expert witness who is skilled in the area of the negligence. For example an expert in medicine who is well versed in dealing with breast cancer can present a a more convincing argument about the reason for the plaintiff's injury. A medical malpractice lawyer in Ocala will know the best experts to ask.
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