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A patient who discovers that an object foreign to the body like surgical clamps, is still inside her body following gall bladder surgery may be able to file a lawsuit for medical malpractice. A successful claim must establish 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 link between the breach of duty and the injury called proximate causation.
The reason for injury
A medical malpractice lawsuit can be filed either by the person who suffered the injury or an attorney. It could be the spouse or adult child guardian, parent or administrator of the estate of a deceased patient, based on the circumstances. In a medical negligence case the defendant is the health care provider. This could be an accredited nurse, doctor or therapist.
Expert testimony is typically required in malpractice cases. Medical experts must testify as to whether the healthcare provider acted within the standard of medical care within their special area of expertise. They also have to testify about the harm caused by the physician's actions or actions or.
Injuries resulting from malpractice and negligence can be very severe. A misdiagnosis could have grave consequences, like the possibility of a life-threatening illness. Other kinds of injuries include operating on the wrong body part or putting surgical instruments in the patient.
The patient must prove four legal elements of a malpractice lawsuit the duty owed to the patient by the physician and a breach of that duty; injury caused by the breach and resulting damages. In certain states, like New York, the law sets a limit on the amount that can be awarded for an action for malpractice.
Causation
The injury element is also called the causation. It is one of most crucial aspects of a medical malpractice claim. To prove causation, the plaintiff must show that they sustained the injury on a balance of probabilities as a result of the negligence of a physician. This can be a challenging task for a number of reasons.
For instance, many injuries that are the subject of a medical malpractice lawsuit stem from long-term, or ongoing illnesses that were present prior to the time of treatment. The statute of limitations on a medical malpractice case can be extended over the course of several years, and injuries can develop slowly.
In these instances, proving that a medical professional's breached the standard of care led to the injury can be difficult. However, the patient who is afflicted might be able use the evidence collected by the attorney, medical malpractice lawsuits including medical records and expert testimony.
During the discovery process, which is an integral part of the legal procedure prepping for trial, your lawyer can seek disclosure of expert testimony and other documents from defense attorneys of the defendants. The doctor who is representing the case will be asked to appear in a deposition. This is a statement that's given under the oath. Your lawyer will be able to cross-examine doctor and contest their conclusions. 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 filing a claim for medical malpractice, that it is likely that the doctor violated his or her duties as a doctor and that these violations caused injury. The attorney representing the plaintiff must demonstrate this using evidence collected during discovery. This includes requesting documents, including medical malpractice attorney records and other records from all parties in a lawsuit. This process also involves swearing statements that are recorded and used at trial.
A doctor has violated their professional duty when they did something that a reasonable prudent physician would not have done under the same circumstances. However it must be proven that the breach directly caused injury to the patient. This is known as causation or causal proximate causes. A patient may go to the hospital in order to repair a hernia and instead, have their gall bladder removed. This is medical malpractice because the removal of the gall bladder did not benefit the patient.
Medical malpractice lawsuits must be brought within a legally regulated period of time, called the statute of limitations which varies by state. The injured patient has to demonstrate that the treatment was substandard and caused injury, and then they must prove what monetary compensation they're entitled to.
Damages
You deserve to be compensated for any injuries you've suffered as a result of medical negligence. Scaffidi & Associates can help you receive fair and full compensation for your losses.
The first step is to file and serve an order and complaint on all named defendants in the lawsuit. The parties then engage in discovery, in which documents and statements are made public under oath. Medical records and notes of a doctor are typically requested during discovery.
In most states, you have to demonstrate four elements in order to be compensated for the injuries caused by medical malpractice that is a duty owed by the healthcare provider and a breach of the obligation; a causal connection between the breach and the injury suffered by the patient as well as damages that result from the injury. If your attorney can establish all of these elements, you can make a an argument for financial compensation in a claim for medical malpractice.
In certain cases, the court may decide to award punitive damages, which is meant to punish the perpetrator and discourage others from committing similar conduct. This is rare however, particularly in medical malpractice cases. The courts must have a clear evidence of malice before they may make these extraordinary awards.
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