Medical Malpractice Lawsuits

Attorneys are required to fulfill a fiduciary responsibility to their clients and they must act with a degree of diligence, skill and care. But, as with all professionals attorneys make mistakes.

The errors made by attorneys are legal malpractice. To prove legal negligence the victim must demonstrate duty, breach of obligation, causation, as well as damage. Let's take a look at each one of these aspects.

Duty

Doctors and other medical professionals swear to use their training and Malpractice lawsuit experience to treat patients and not cause harm to others. The duty of care is the foundation for patients' right to compensation if they are injured by medical malpractice. Your attorney can determine if the actions of your doctor violated the duty to care and if the breach resulted in your injury or illness.

To prove a duty to care, your lawyer must to establish that a medical professional had a legal relationship with you in which they had a fiduciary obligation to perform their duties with a reasonable level of competence and care. This relationship can be established by eyewitness testimony, doctor-patient records and expert testimony of doctors with similar education, experience and training.

Your lawyer will also have to prove that the medical professional violated their duty of care by not submitting to the accepted standards of care in their field. This is often called negligence. Your attorney will compare the defendant's behavior to what a reasonable person would do in the same situation.

Your lawyer will also need to prove that the defendant's breach caused direct injury or loss. This is referred to as causation, and your lawyer will make use of evidence such as your doctor-patient documents, witness statements, and expert testimony to show that the defendant's failure to live up to the standards of care in your case was a direct cause of your injury or loss.

Breach

A doctor is required to perform a duty of treatment to his patients that conforms to the highest standards of medical practice. If a doctor does not meet these standards and this causes injury, then medical malpractice and negligence may occur. Expert witness testimony from medical professionals that have the same training, certifications and skills can help determine the level of care in a given situation. State and federal laws, as well as institute policies, help define what doctors are expected to provide for specific types of patients.

To prevail in a malpractice lawsuit, it must be shown that the doctor breached his or duty of care and that the breach was the direct cause of an injury. This is referred to in legal terms as the causation factor and it is imperative to establish. If a doctor needs to obtain an xray of a broken arm, they must put the arm in a cast and then correctly set it. If the doctor is unable to do this and the patient suffers a permanent loss of use of the arm, malpractice could have occurred.

Causation

Attorney malpractice claims rely on evidence that shows the attorney's mistakes resulted in financial losses for the client. For example the lawyer fails to file an action within the timeframe of limitations, resulting in the case being lost for ever, the injured party could bring legal malpractice lawsuits.

It's important to recognize that not all mistakes by attorneys constitute malpractice. Strategies and planning errors are not typically considered to be negligence. Attorneys have a broad decision-making discretion to make decisions, as long as they're able to make them in a reasonable manner.

The law also allows attorneys ample discretion to refrain from performing discovery on behalf of clients, so long as the decision was not arbitrary or negligent. Failure to uncover important details or documents, such as medical or witness statements or medical reports, could be an instance of legal malpractice. Other instances of malpractice include failure to add certain defendants or claims such as omitting to submit a survival count in a wrongful death case, or the repeated and prolonged inability to communicate with clients.

It's also important to note that it must be proved that, if not for the lawyer's negligence, the plaintiff would have won the underlying case. The claim of the plaintiff for malpractice will be rejected if it is not proven. This requirement makes the process of bringing legal malpractice lawsuits difficult. Therefore, it's crucial to hire an experienced attorney to represent you.

Damages

To win a legal malpractice lawsuit the plaintiff must prove actual financial losses caused by an attorney's actions. This should be proved in a lawsuit with evidence such as expert testimony, correspondence between client and attorney or billing records, and other documentation. The plaintiff must also show that a reasonable attorney could have prevented the harm caused by the negligence of the lawyer. This is known as proximate cause.

The causes of malpractice vary. The most frequent errors include: not meeting a deadline or statute of limitations; failing to conduct an examination of a conflict on cases; applying law improperly to a client's situation; or breaking an obligation of fiduciary (i.e. mixing trust funds with an attorney's personal accounts) and mishandling the case, or not communicating with clients.

Medical malpractice lawsuits typically involve claims for compensatory damages. They compensate the victim for the out-of-pocket expenses and losses, such as hospital and medical bills, the cost of equipment required to aid in recovery, and lost wages. In addition, victims may claim non-economic damages, such as pain and suffering as well as loss of enjoyment life and emotional suffering.

Legal malpractice law firms cases typically involve claims for compensatory as well as punitive damages. The former is intended to compensate the victim for the losses caused by the negligence of the attorney while the latter is intended to prevent future mistakes by the defendant's side.