How to File a Medical Malpractice Case

A patient who discovers an object foreign to her, such as surgical clamps, remains in her body following gall bladder surgery can file a medical malpractice lawsuit. A successful claim must establish the legal aspects of medical negligence: duty, deviance from this duty, direct cause, and injury.

It is vital for our clients to establish a direct relationship between the breach of duty and the resulting injury, known as proximate causation.

The reason for injury

A medical malpractice claim may be filed by the person who was injured or a legal representative. Based on the specific circumstances, it could be the spouse of the patient, an adult child or parent, a guardian ad litem, or the executor or administrator of the estate of the patient who died. The defendant in a suit for medical negligence is the health professional. It could be a licensed doctor, nurse or therapist.

Expert testimony is often required in cases of malpractice. Medical experts must testify as to whether or whether the health professional adhered to the standards of treatment for their particular area of expertise. They must also testify to the damage caused by the actions or inactions of a doctor.

The injuries that result from malpractice and negligence can be very serious. A misdiagnosis can have serious consequences, such as the possibility of a life-threatening illness. Other kinds of injuries include operating on the wrong body part or leaving instruments inside the patient during surgery.

In order to establish a malpractice case the patient has to prove four legal elements: a duty that the doctor owed them; a breach in this duty; a resultant injury; and damages. In certain states like New York the law limits the amount of money that can be awarded in a malpractice case.

Causation

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

A lot of the injuries that form the basis of a medical negligence lawsuit result from long-term or ongoing conditions that existed prior to when treatment began. The time period for filing a medical malpractice lawsuit can be extended for a number of years and injuries may develop slowly.

In these cases it is difficult to prove that a medical professional's breach of the standard of care led to the injury can be difficult. However, the aggrieved patient could be able to use the evidence gathered by the attorney, such as medical records and expert testimony.

During the discovery procedure that is part of the legal process prepping for a trial your attorney can request that the lawyers representing the defendants disclose expert testimony and other documents. The doctor who is representing the case will be required to give a deposition. This is a testimony which is under the oath. Your lawyer can cross-examine the doctor and contest their findings. The jury will then decide if the plaintiff has proved the necessary elements of their case, including breach of duty, causation, breach of duty and injury.

Negligence

The plaintiff must convince jurors, in a case of medical malpractice that it is more likely that the physician violated the obligations of medical professional and that these mistakes led to injuries. The plaintiff's lawyer has to show this through evidence gathered through pretrial discovery, which involves seeking disclosure of documents, which includes medical malpractice lawyer records from all parties who are involved in the lawsuit. The process also involves the recording of sworn statements and used at trial.

A doctor has violated their professional obligation by doing something that a reasonable and prudent doctor would not have done in similar circumstances. It must be proven that the breach was the cause of the injury directly to the patient. This is known as causation or proximate causes. For instance when a patient is taken to the hospital for a hernia operation and is then able to have his or her gall bladder removed instead. This is medical negligence as the removal did not benefit the patient.

Medical malpractice lawsuits must be filed within a certain timeframe, also known as the statute of limitations. This differs from state to state. The injured patient has to show that the inadequate treatment caused injury, and they must show what compensation they are entitled to.

Damages

If medical negligence has led you to suffer a traumatic injury, you should be made whole. At Scaffidi & Associates, we can help you receive the full and fair compensation you deserve for your loss.

The first step in a lawsuit is to make a complaint and serve it along with summons and other papers on all defendants. The parties then engage in discovery, a process in which documents and declarations are made public under oath. During discovery medical records and notes from a doctor will typically be sought.

In the majority of states, you need to prove four things in order to be compensated for the injuries caused by medical malpractice: a duty owed by the healthcare provider and a breach of the obligation; a causal connection between the breach and the patient's injury; and damages that flow from the injury. If your attorney can establish all of these elements, you can make a an excellent case for financial recovery in a claim for medical malpractice.

In some instances the court could award punitive damage which is intended to punish the perpetrator and deter others from engaging in similar misconduct. However, this is rare in medical malpractice cases, as courts require specific proof of malice to award these extraordinary awards.

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