How to File a Medical Malpractice Case

A patient who discovers an object that is foreign, for example, surgical clamps inside her body after gall bladder surgery is able to file a lawsuit for medical malpractice. A successful lawsuit must prove the legal aspects of medical negligence: duty, deviation from this obligation, direct cause and injury.

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

Causes of Injury

A medical malpractice claim may be filed either by the person who suffered the injury or an attorney. Depending on the circumstances this could be a spouse of the patient or an adult child, parent, a guardian ad litem or the executor or administrator of the estate of the patient who died. In a medical negligence case, the defendant is the health care provider. This could be a doctor, nurse, therapist or any other licensed health care professional.

Expert testimony is typically required in malpractice cases. Medical experts are required to testify whether or the medical professional followed the standard of care for their particular area of expertise. They also have to testify to the damage caused by the actions or inactions of the doctor.

The injuries that result from malpractice and negligence can be quite severe. A misdiagnosis can have serious consequences, like the possibility of a life-threatening illness. Other types of injuries include performing surgery on the wrong body part or leaving instruments inside the patient during surgery.

In order to establish a malpractice case, the patient must prove four legal elements: a duty the doctor owed to them; a breach in this duty; a subsequent 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 is also known as the causation. It is one of the most important elements in a medical negligence claim. To establish causation the plaintiff must demonstrate that their injury was caused by the doctor's negligence. This can be a challenging task due to a variety of reasons.

A lot of the injuries that form the basis of a medical negligence lawsuit stem from long-term or ongoing conditions which were present before treatment began. The statute of limitations on a medical malpractice lawsuit can be extended over a period of time and injuries can develop slowly.

In these situations, medical malpractice lawsuits it is difficult to prove that one particular medical professional's violation of the standard of care caused the injury. However, the patient who is afflicted may be able to use evidence collected by the attorney, including medical records and expert testimony.

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

Negligence

The plaintiff must convince the jury, when filing a claim for medical malpractice, that it is more than likely that the doctor acted in violation of his or her responsibilities as a doctor and that these violations caused injury. The plaintiff's lawyer must prove this using evidence gathered through pretrial discovery, which includes the disclosure of documents, including medical records from all parties who are involved in the lawsuit. Depositions, in which statements are made under oath and recorded to be used at trial, are also part of this process.

A doctor has violated their professional duty by doing something that a reasonable and prudent doctor would not have done under the same circumstances. It must be proved that the breach caused injury directly to the patient. This is referred to as causation, or proxy causes. For instance when a patient is taken to the hospital for a hernia procedure and then has his or the gall bladder removed instead. This is medical malpractice as the removal of the gall bladder was not beneficial to the patient.

Medical malpractice lawsuits must be filed within a legally prescribed period of time, referred to as the statute of limitations which varies according to the state. The patient who is injured must prove that the substandard care resulted in injury, and then prove how much monetary compensation they are entitled to.

Damages

You are entitled to compensation for any injuries that you've suffered due to medical negligence. At Scaffidi & Associates, we will assist you in receiving an adequate and fair amount of compensation for your loss.

The first step is to file and serve a summons and complaint to all defendants named in the lawsuit. The parties then begin discovery, a process by which documents and declarations are made public under the oath. During discovery, medical records and doctor's notes are typically requested.

In most states, you need to prove four things to be compensated for injuries caused by medical malpractice such as a duty due to the healthcare provider and a breach of that duty; a causal link between the breach and the patient's injury and the damages that result from the injury. If your lawyer can demonstrate all of these aspects of a medical malpractice law firm negligence claim, you will have an impressive case.

In certain cases the court can give punitive damages, which are designed to punish the perpetrator and discourage others from engaging in the same conduct. But, this isn't often the case in medical malpractice cases, because the courts require specific proof of malice to give these extraordinary awards.