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A patient who finds an object that is foreign, for example, surgical clamps in her body following gall bladder surgery may bring a lawsuit against a doctor for medical negligence. A successful claim must establish the legal elements of medical negligence: duty, deviation from this duty, direct cause and injury.
Our clients must establish a direct connection between the breach of duty, and the injury. This is referred to as the proximate cause.
Cause of Injury
A claim for medical malpractice can be filed by the person who was injured or a legal representative. This can be the spouse, adult child, parent, guardian or administrator of an estate belonging to a deceased patient, based on the circumstances. The defendant in a medical malpractice suit is the health care provider. This could be a licensed nurse, doctor or therapist.
Expert testimony is typically required in cases of malpractice. Medical experts must provide evidence to prove that the health care provider was acting in accordance with the standards of care in their special area of expertise. They must also testify about the injury caused by the doctor's actions or inactions.
Injury caused by negligence and malpractice can be severe. A misdiagnosis can have serious consequences, including an illness that could be life-threatening. Other types of injuries can be caused by operating on an incorrect body part or leaving surgical instruments inside the patient.
The patient must establish four legal elements in a malpractice case that include a duty owed to the patient by the physician; a breach of this obligation; a harm caused by the breach and resulting damages. In some states such as New York the law limits the amount of money that can be awarded for a malpractice claim.
Causation
The element of injury is called the causation. It is one of the most important elements in a medical malpractice claim. To prove causation, a plaintiff must demonstrate that they sustained the injury based on a balance of probabilities as a result of the negligence of the doctor. This can be a challenging task for several reasons.
For example, many injuries that are the subject of a medical-malpractice lawsuit stem from long-term, or ongoing conditions that were in the process of being treated prior to. Often the statute of limitations for a medical malpractice claim extends over a variety of years, and the injuries can develop gradually.
In these situations it can be difficult to prove that one particular medical professional's violation of the standard of care led to the injury. The attorney may have collected evidence, such as expert testimony and medical records, that the injured patient may use.
In the discovery process which is an element of the legal procedure for preparing for a trial, your lawyer can request the defendants' lawyers disclose expert testimony and other documents. The doctor who is representing the case will be required to give a deposition. This is a statement that is given under the oath. Your lawyer will be able to challenge the doctor's findings and cross-examine them. The jury will decide if the plaintiff has proven the elements of the case which include breach of duty, breach and causation.
Negligence
The plaintiff must convince jurors, when bringing a lawsuit for medical malpractice that it is likely that the doctor did not fulfill his or her duties as a physician and that those actions led to injury. The lawyer for the plaintiff must demonstrate this by presenting evidence through pretrial discovery, which entails asking for disclosure of documents such as medical records from all parties involved in the lawsuit. This process also involves the recording of sworn statements and used at trial.
A doctor has violated their professional duty if they did something a reasonable and prudent doctor would not have done under the same circumstances. It must be proven that the breach caused the injury directly to the patient. This is called causation or causal proximate causes. For example an individual goes to the hospital for a procedure to treat a hernia and is later told that he or her 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-defined period of time, also known as the statute of limitations which is different for each state. The patient who is injured must prove that the care provided was substandard and resulted in injury, and then he or she must prove the amount of financial compensation they are entitled to.
Damages
If medical negligence has caused you to suffer injury, you deserve to be compensated. Scaffidi & Associates can help you receive a fair and complete compensation for your losses.
The first step is filing and serving a complaint and summons on all defendants named in the lawsuit. The parties then engage in discovery. This is in which documents and declarations are made public under oath. During discovery medical records and doctor's notes will typically be sought.
In the majority of states, to receive compensation for injuries caused through malpractice, you need to prove four things: a duty of care due to the healthcare provider and a breach of that duty; a causal link between the breach and injury and damages resultant from the injury. If your attorney can establish all of these elements, you have an excellent case for financial recovery in a claim for medical malpractice.
In certain cases the court can decide to award punitive damages. These are designed to punish the offender and deter others from engaging in similar misconduct. But, this isn't often the case in medical malpractice attorneys malpractice cases, as courts require precise proof of malice before they can give these extraordinary awards.
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