How to File a Medical Malpractice Case

A patient who finds that an object that is foreign, such as surgical clamps, is still inside her body after gall bladder surgery may file a medical malpractice lawsuit. A successful lawsuit must prove the legal aspects of medical negligence: duty, deviance from this duty, direct causes, and injury.

It is important for our clients to establish a direct causal connection between the breach of duty and the injury, known as proximate causation.

Causes of Injury

A medical malpractice lawyers malpractice lawsuit can be filed by the person who was injured or a legal representative. It could be the spouse or adult child or parent, guardian or administrator of an estate belonging to a deceased patient depending on the specific circumstances. In a case involving medical malpractice, the defendant is the health care provider. This could be a nurse, doctor, therapist or any other health care professional.

Expert testimony is usually required in cases of malpractice. Medical experts must be able to prove whether or whether the healthcare provider adhered to the standards of care for their specific area. They must also testify to the damage caused by the doctor's actions or inactions.

The injuries that result from malpractice and negligence can be quite severe. A misdiagnosis can have serious consequences, such as life-threatening conditions. Other types of injuries could include performing surgery on the wrong body part or putting instruments inside the patient during surgery.

The patient must prove four legal elements of a malpractice lawsuit that include a duty owed to the patient by the doctor and medical malpractice lawsuits a breach of this duty; an injury caused by the breach and the consequential damages. In certain states, such as New York, the law restricts the amount that can be awarded for the malpractice claim.

Causation

The injury element, also referred to as causation, is among the most important elements in medical malpractice cases. To prove causation the plaintiff must prove that they suffered their injury on a balance of probabilities as a result of the physician's negligence. This can be a difficult task for a number of reasons.

Many injuries that are the basis of a medical negligence lawsuit stem from long-term conditions or ongoing conditions which were present before treatment started. The time-limit for a medical malpractice lawsuit can be extended over the course of several years and the development of injuries can happen slowly.

In these instances, proving that a medical professional's breach of the standard of care which led to the injury is difficult. The attorney could have collected evidence, such as expert testimony and medical records which the injured patient could use.

During the discovery process, which is an integral part of the legal procedure for getting ready for trial, your lawyer may request the disclosure of expert testimony as well as other documents from lawyers of the defendants. The doctor who is defending the lawsuit is then asked to testify during deposition, which is testimony under an oath. Your lawyer can cross-examine the doctor and contest the doctor's findings. The jury will then decide whether the plaintiff has established the essential elements of their case, including obligation, breach, causation and injury.

Negligence

If a medical malpractice lawsuit is filed the plaintiff has to convince the jury that it was more likely than not that the doctor violated professional obligations and that those breached duties caused injuries. The plaintiff's lawyer must demonstrate this through evidence gathered during pretrial discovery. This includes soliciting documents, including medical malpractice lawsuits records from all parties involved in the lawsuit. Depositions, in which statements are made under oath and recorded to be used at trial, are also a part of this process.

A doctor has violated his or her professional obligation when he/she did something that a prudent physician would not do under the same circumstances. It must be proved that the breach caused the injury directly to the patient. This is referred to as causation, or the proximate cause. For instance when a patient is taken to the hospital for a hernia surgery and is then able to have his or her gall bladder removed instead. This is medical malpractice because the removal of the gall bladder did not benefit the patient.

Medical malpractice suits must be filed within a specific legal time limit, known as the statute of limitations. This varies from state to state. The patient who was injured must prove that the negligent treatment caused injury, and they must establish what compensation they deserve.

Damages

You deserve to be compensated for any injuries you've suffered as a result of medical negligence. At Scaffidi & Associates, we can assist you to receive full and fair compensation for your losses.

The first step is to file and serve a complaint and summons on all defendants named in the lawsuit. The parties then proceed to discovery, a process in which documents and statements are revealed under an oath. During discovery, medical records and doctor's notes will typically be sought.

In the majority of states, you must prove four things to be compensated for injuries incurred by medical malpractice such as a duty due to the healthcare provider; a breach of that obligation; a causal connection between the breach and the injury suffered by the patient and damages resulting from the injury. If your attorney can demonstrate all of these aspects of a medical negligence claim, you will have a convincing case.

In some cases, the court may make punitive damages a possibility which is intended to penalize a wrongdoer and discourage others from committing similar acts. But, this isn't often the case in medical malpractice cases since courts require specific proof of malice to award these extraordinary awards.