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Attorneys are required to fulfill a fiduciary responsibility to their clients, and they are expected act with a degree of diligence, skill and care. However, just like any other professional, attorneys make mistakes.
A mistake made by an attorney is negligence. To prove negligence in a legal sense the victim must demonstrate the duty, breach of duty, causation, and damages. Let's look at each one of these aspects.
Duty
Medical professionals and doctors swear the oath of using their knowledge and expertise to treat patients, not to cause further harm. Duty of care is the foundation for the right of patients to receive compensation in the event of injury due to medical malpractice. Your attorney can determine if your doctor's actions breached the duty of care and whether these violations caused injury or illness.
To prove a duty of care, your lawyer must to show that a medical professional had an official relationship with you, in which they have a fiduciary obligation to exercise an acceptable level of expertise and care. Establishing that this relationship existed could require evidence like your records of your doctor-patient relationship, eyewitness statements and expert testimony from doctors who have similar experience, education and training.
Your lawyer will also have to establish that the medical professional violated their duty of caring by failing to adhere to the accepted standards in their field. This is often referred to as negligence, and your attorney will compare the defendant's behavior to what a reasonable person would perform in the same situation.
Your lawyer must also demonstrate that the defendant's negligence led directly to your injury or loss. This is known as causation. Your attorney will use evidence such as your medical reports, witness statements and malpractice lawsuits expert testimony to prove that the defendant's failure to uphold the standards of care in your case was the direct cause of your loss or injury.
Breach
A doctor is responsible for the duties of care that conform to professional standards in medical practice. If a physician fails to meet these standards, and the result is an injury or medical malpractice, then negligence could occur. Typically expert testimony from medical professionals who have similar training, expertise and certifications will help determine what the appropriate standard of treatment should be in a particular situation. State and federal laws as well as institute policies also help determine what doctors should perform for specific types of patients.
In order to win a malpractice claim it must be proved that the doctor did not fulfill his or her duty of care and that the breach was a direct reason for an injury. This is referred to in legal terms as the causation element, and it is imperative to establish. If a physician has to perform an x-ray on a broken arm, they must place the arm in a casting and correctly set it. If the doctor is unable to complete this task and the patient is left with a permanent loss of use of the arm, then malpractice may have occurred.
Causation
Attorney malpractice claims rely on evidence that demonstrates that the attorney's errors caused financial losses to the client. For instance the lawyer does not file a lawsuit within the prescribed time of limitations, resulting in the case being lost for ever the person who was injured could bring legal malpractice attorneys lawsuits.
It is crucial to be aware that not all errors made by lawyers are a sign of mistakes that constitute malpractice. Strategies and mistakes are not usually considered to be malpractice and lawyers have lots of freedom to make judgement calls so long as they're reasonable.
Likewise, the law gives attorneys considerable leeway to fail to conduct discovery on behalf of a client's behalf, as long as the action was not negligent or unreasonable. The failure to discover crucial documents or facts like medical reports or statements of witnesses can be a case of legal malpractice. Other examples of malpractice include a inability to include certain defendants or claims for example, like forgetting to file a survival count in a wrongful death lawsuit or the continual and extended failure to communicate with clients.
It's also important that it has to be proven that but for the lawyer's negligence, the plaintiff would have won the case. The claim of malpractice by the plaintiff will be dismissed in the event that it is not proved. This requirement makes the process of bringing legal malpractice lawsuits (read this post from www.springmall.net) difficult. It's important to choose a seasoned attorney to represent you.
Damages
A plaintiff must demonstrate that the attorney's actions caused actual financial losses in order to win a legal malpractice lawsuit. This should be proved in a lawsuit through evidence such as expert testimony, correspondence between client and attorney as well as billing records and other evidence. The plaintiff must also show that a reasonable attorney could have prevented the damage caused by the negligence of the lawyer. This is known as proximate cause.
It can happen in many different ways. Some of the most common mistakes include: not meeting a deadline or statute of limitations; not performing a conflict check on an instance; applying the law improperly to a client's situation; or breaking an obligation of fiduciary (i.e. Commingling funds from a trust account the attorney's own accounts or handling a case improperly and failing to communicate with the client are just a few examples of misconduct.
In most medical malpractice cases the plaintiff seeks compensation damages. These compensations are intended to compensate the victim for out-of pocket expenses and losses, such as medical and hospitals bills, the cost of equipment to aid recovery, and lost wages. In addition, the victims can claim non-economic damages, such as suffering and suffering or loss of enjoyment life and emotional suffering.
Legal malpractice cases usually involve claims for compensatory or punitive damages. The former compensates a victim for the losses caused by the negligence of the attorney, whereas the latter is designed to deter any future malpractice committed by the defendant.
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