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Attorneys are required to fulfill a fiduciary responsibility to their clients and they must act with skill, diligence and care. However, like all professionals, attorneys make mistakes.
The mistakes made by lawyers are considered to be malpractice. To prove negligence in a legal sense the person who was hurt must prove obligation, breach of duty, causation, and damage. Let's examine each of these elements.
Duty-Free
Medical professionals and doctors take an oath to apply their skills and experience to cure patients, not causing further harm. The duty of care is the basis for the right of a patient to be compensated for injuries caused by medical malpractice. Your attorney can determine if your doctor's actions breached the duty of medical care and if the breach caused injury or illness.
To prove a duty to care, your lawyer must to demonstrate that a medical professional has a legal relationship with you that were bound by a fiduciary duty to exercise an acceptable level of competence and care. This can be demonstrated by eyewitness testimony, doctor-patient records, and expert testimony of doctors who have similar education, experience and training.
Your lawyer will also have to prove that the medical professional violated their duty of care by failing to adhere to the accepted standards of care in their area of expertise. This is commonly described as negligence. Your lawyer will be able to compare the actions of the defendant to what a reasonable person would do in a similar situation.
Then, your lawyer has to prove that the defendant's breach of duty directly led to your loss or injury. This is referred to as causation. Your attorney will rely on evidence like your medical records, witness statements and expert testimony to prove that the defendant's inability to uphold the standard of care in your case was the direct cause of your injury or loss.
Breach
A doctor is responsible for the duties of care that conform to the standards of medical professional practice. If a doctor fails meet these standards and fails to do so results in injury, negligence and medical malpractice might occur. Typically the testimony of medical professionals who have the same training, qualifications, certifications and experience will help determine what the standard of medical care should be in a particular situation. Federal and state laws and institute policies also help determine what doctors should perform for specific types of patients.
To prevail in a malpractice lawsuit the evidence must prove that the doctor breached his or her duty of care and that this violation was the sole cause of an injury. This is known in legal terms as the causation element, and it is crucial to prove it. If a doctor has to perform an x-ray on an injured arm, they must place the arm in a cast and properly set it. If the doctor fails to do this and the patient loses their the use of the arm, malpractice may be at play.
Causation
Attorney malpractice claims rely on evidence that demonstrates that the attorney's errors resulted in financial losses for the client. For example the lawyer fails to file an action within the timeframe of limitations, which results in the case being lost forever the person who was injured could bring legal malpractice lawsuits.
It is important to realize that not all errors made by lawyers constitute mistakes that constitute malpractice. Strategies and mistakes aren't usually considered to be a violation of the law attorneys have plenty of discretion to make judgment calls as long as they're reasonable.
Additionally, the law grants attorneys a lot of discretion to conduct discovery on the behalf of their clients, as long as it was not negligent or unreasonable. Inability to find important facts or documents, such as medical or witness statements can be a case of legal malpractice. Other examples of malpractice are the inability to add certain defendants or claims, such as not noticing a survival count in an unjustly-dead case or the constant failure to communicate with clients.
It's also important that it has to be proven that if it weren't the negligence of the lawyer, the plaintiff would have won the case. Otherwise, the plaintiff's claim for malpractice lawyers will be denied. This makes the process of bringing legal malpractice lawsuits difficult. It is crucial to find an experienced attorney.
Damages
A plaintiff must prove that the attorney's actions have caused actual financial losses to prevail in a legal malpractice suit. In the case of a lawsuit this has to be proven through evidence, like expert testimony or correspondence between the attorney and client. In addition the plaintiff has to prove that a reasonable lawyer would have prevented the harm caused by the negligence of the attorney. This is referred to as proximate cause.
The act of malpractice can be triggered in a variety of different ways. Some of the more common kinds of malpractice are: failing to adhere to a deadline, which includes the statute of limitations, a failure to conduct a conflict-check or other due diligence check on a case, improperly applying the law to the client's situation or breaking a fiduciary duty (i.e. the commingling of funds from a trust account with the attorney's personal accounts, Malpractice Lawsuits mishandling a case and failing to communicate with the client are all examples of malpractice.
In most medical malpractice cases the plaintiff seeks compensation damages. These compensations are intended to compensate the victim for out-of pocket expenses and expenses such as medical and hospitals bills, the cost of equipment to aid in recovery, and lost wages. Victims are also able to claim non-economic damages, such as discomfort and pain, loss of enjoyment of their lives, as well as emotional distress.
In a lot of legal malpractice cases there are claims for punitive and compensatory damages. The former compensates victims for losses due to the negligence of the attorney and the latter is intended to prevent future mistakes on the defendant's part.
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