How to File a Medical Malpractice Case

A patient who finds that an object that is foreign like surgical clamps, remain inside her body after gall bladder surgery may file a medical malpractice lawsuit. A successful lawsuit must establish the elements of medical negligence: duty, deviation from the duty, and direct reason.

Our clients must establish a direct connection between the breach of duty, Medical Malpractice and the injury. This is referred to as the proximate reason.

Cause of Injury

A medical malpractice lawsuit can be filed by the injured person or a legal person to represent them. This can be the spouse or adult child parent, guardian, or administrator of a deceased patient's estate, depending on the circumstances. In a case of medical malpractice the defendant is the health care provider. This could be a licensed nurse, doctor or therapist.

Expert testimony is often required in cases of malpractice. Medical experts are required to provide evidence to prove that the health care provider did what was required of care in their special area of expertise. They also need to testify on the injury caused by the physician's actions or inactions.

Accidents caused by negligence or mistakes can be devastating. For medical Malpractice example, a misdiagnosis of a health issue could have life-threatening consequences. Other kinds of injuries include operating on the wrong body part or leaving instruments inside the patient during surgery.

The patient must establish four legal elements in a malpractice claim which include a duty to the patient by the physician; a breach of this duty; an injury caused by the breach; and the resulting damages. In certain states, such as New York, the law puts a limit on amount of money that can be awarded in a malpractice claim.

Causation

The injury element, also known as causation is one of the most important elements in medical malpractice cases. To prove causation, the plaintiff must demonstrate that their injury was caused by a physician's negligence. This can be a difficult job due to a variety of reasons.

For instance, many injuries that are the subject of a medical-malpractice lawsuit arise from long-term or ongoing ailments that were present before treatment began. Often the statute of limitations for a claim involving medical malpractice extends out over a number of years, and injuries can develop gradually.

In these cases it is difficult to prove that a medical professional's breached the standard of care which led to the injury is difficult. However, the patient who was hurt might be able use evidence gathered by the attorney, such as medical records and expert testimony.

During the discovery process, which is an integral part of the legal procedure for preparing for trial, your lawyer will request disclosure of expert testimony and other documents from defendants' attorneys. The doctor who is defending the case will be asked to testify in a deposition. This is a statement which is under oath. Your lawyer may cross-examine the doctor and contest their conclusions. The jury will decide whether the plaintiff has established the facts of the case including breach of duty, breach of contract and causation.

Negligence

The plaintiff must convince jurors, when bringing a lawsuit for medical malpractice to show that it is more than likely that the doctor acted in violation of his or her responsibilities as a doctor and that these mistakes led to injuries. The plaintiff's lawyer must demonstrate this with evidence gathered through pretrial discovery, which entails asking for disclosure of documents such as medical records from all parties who are involved in the lawsuit. Depositions, in which statements are made under oath and recorded for use at trial, are also part of this procedure.

A doctor violated his or her professional obligation when he/she did something that a reasonably prudent physician would not do under similar circumstances. However it must be proven that the breach directly caused injury to the patient. This is referred to as causation, or proxy causes. For example an individual goes to the hospital for a hernia procedure and is then able to have his or his gall bladder removed instead. This is medical negligence since the procedure did not benefit the patient.

Medical malpractice lawsuits must be filed within a legally-defined period of time, also known as the statute of limitations, which varies according to the state. The patient who was injured must demonstrate that the treatment was substandard and caused injury, and then they have to prove the amount of compensation they're entitled to.

Damages

You are entitled to compensation for any injuries you have suffered due to medical negligence. Scaffidi & Associates can help you receive full and fair compensation for your losses.

The first step is filing and serving a summons and complaint to all named defendants in the lawsuit. The parties then engage in discovery. This is where documents and statements are revealed under oath. Medical records and the notes of the doctor are usually requested during discovery.

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; a breach of that duty; a causal connection between the breach and the patient's injury; and damages that flow from the injury. If your lawyer can prove all these elements of a medical negligence claim, you'll have a convincing case.

In certain instances the court can award punitive damages, which are designed to punish the offender and deter others from engaging in similar misconduct. It is not common however, in medical malpractice cases. The courts must have clear evidence of intent to commit a crime before they are able to decide to award these extraordinary damages.