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A patient who discovers a foreign object like surgical clamps, is still inside her body following gall bladder surgery may pursue a medical malpractice suit. A successful lawsuit must establish the elements of medical malpractice: duty, deviance from the duty, and direct cause.
It is vital for our clients to establish a direct connection between the breach of duty and the harm that is known as proximate causation.
Cause of Injury
A medical malpractice claim can be initiated by the patient who was injured or a person legally designated to represent them. Depending on the circumstances this could be a spouse of the patient or an adult child parent, a guardian ad litem or the administrator or executor of the estate of the patient who died. The plaintiff in a medical malpractice lawsuit is the health care provider. This could be a licensed nurse, doctor or therapist.
Expert testimony is typically required in malpractice cases. Medical experts are required to testify as to whether the medical professional performed his duties in accordance with the standard of care in his or her particular field of expertise. They must also testify as to the harm resulting from the doctor’s actions or inactions.
Injuries resulting from malpractice and negligence can be very severe. For instance, a wrong diagnosis of a medical condition could have life-threatening consequences. Other types of injuries can include operating on the wrong body part or putting surgical instruments in the patient.
To establish a malpractice case the patient must demonstrate four legal elements: a duty that the doctor owed to them; a breach of this duty; a resultant injury; and damages. In some states, such as New York, the law puts a limit on amount of money that can be awarded in an injury resulting from a malpractice claim.
Causation
The injury element is called the causation. It is among the most crucial aspects of a medical malpractice claim. To prove causation, the plaintiff must prove that they sustained the injury on the basis of probabilities as a result of the negligence of a physician. This can be a difficult task for several reasons.
Many of the injuries that are the basis of a medical negligence suit result from chronic conditions that existed prior to when treatment started. Often the statute of limitations for a medical malpractice lawsuit is extended over a period of years, and the injuries can develop gradually.
In these cases the proof that a medical professional's breached the standard of care which led to the injury is not easy. The attorney could have collected evidence, like medical records and expert testimony that the patient who was injured can use.
During the discovery process, which is a component of the legal process for prepping for trial, medical malpractice lawsuits your lawyer can request the disclosure of expert testimony and other documents from the defense attorneys of the defendants. The doctor who is defending the case will be required to testify in deposition. This is a testimony which is under the oath. Your lawyer may challenge the doctor's findings and cross-examine them. The jury will decide whether the plaintiff has proved that the allegations of the case are true including breach of duty and causation.
Negligence
The plaintiff must convince the jury when bringing a lawsuit for medical malpractice law firm malpractice, that it is more likely that the doctor acted in violation of his or her obligations as a physician and that those violations caused injury. The plaintiff's lawyer must demonstrate this using evidence gathered during pretrial discovery. This involves seeking documents, such as medical records as well as other documents from all parties in the lawsuit. This process also involves the recording of sworn statements and used at trial.
A doctor breached his or her professional obligations if he or she did something that a prudent physician would not do in similar circumstances. However it must be proven that the breach directly caused the injury to the patient. This is referred to as causation, or the proximate cause. For example the patient is admitted to the hospital for a hernia procedure and ends up having his or the gall bladder removed instead. This is medical negligence because the removal did not benefit the patient.
Medical malpractice lawsuits must be filed within a legally prescribed period of time, referred to as the statute of limitations, that varies from state to state. The victim must prove that the negligent care caused injury, and then he or she must show how much compensation he or she deserves.
Damages
You are entitled to compensation for any injuries that you've suffered due to medical negligence. Scaffidi & Associates can help you get fair and complete compensation for your losses.
The first step is filing and serving an order and complaint on all named defendants in the lawsuit. The parties then proceed to discovery, medical malpractice lawsuits a procedure in which documents and declarations are made public under an oath. During discovery, medical records and notes from a doctor are usually requested.
In most states, you need to prove four things in order to be compensated for injuries incurred by medical malpractice such as a duty due to the healthcare provider in breach of that duty; a causal relationship between the breach and the injury suffered by the patient and damages resulting from the injury. If your attorney can prove all these elements in a medical malpractice claim, you will have an impressive case.
In certain instances courts may make punitive damages available, which are intended to penalize the wrongdoer and deter others from engaging in similar conduct. It is not common however, in medical malpractice cases. The courts must have a clear evidence of malice before they are able to make these extraordinary awards.
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