How to File a Medical Malpractice Case

A patient who discovers an object foreign to the body such as surgical clamps in her body after gall bladder surgery can sue for medical negligence. A successful claim must demonstrate the elements of medical negligence: duty, deviation from this duty and direct reason.

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

The reason for injury

A medical malpractice lawsuit can be filed either by the person who was injured or an attorney. Depending on the circumstances this could be the spouse of the patient or an adult child parent, a guardian ad litem, or the administrator or executor of the estate of the patient who died. The defendant in a medical malpractice lawsuit is the health care provider. This could be a doctor, nurse, therapist or any other licensed health professional.

Expert testimony is often required in malpractice cases. Medical experts must provide evidence to prove that the doctor performed his duties in accordance with the standard of treatment in their specific area of expertise. They must also testify regarding the injury that was caused by the doctor's actions or inactions.

The consequences of malpractice and negligence can be very serious. For example, a misdiagnosis of a health problem could cause life-threatening complications. Other types of injuries include performing surgery on the wrong body part or leaving instruments inside the patient during surgery.

To establish a malpractice claim the patient must demonstrate 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 places a limit on the amount of money that can be awarded in an action for malpractice.

Causation

The injury element is known as the causation. It is one of most important elements in a medical negligence claim. To prove causation, the plaintiff must show that they sustained their injury on the balance of probabilities due to due to the negligence of the doctor. This is a challenging job due to various reasons.

Many of the injuries that form the basis of a medical negligence suit result from long-term conditions or ongoing illnesses that existed before treatment began. The time-limit for a medical malpractice case could be extended over a period of time, and injuries can develop slowly.

In these cases it is difficult to prove that a medical professional's violation of the standard of care which led to the injury is difficult. The attorney could have collected evidence, like medical records and expert testimony which the injured patient may use.

During the discovery process, which is an integral part of the legal process for preparation for trial, your lawyer will request the disclosure of expert testimony and other documents from defendants' attorneys. The doctor who is representing the case will be required to give deposition. This is a testimonies that is made under oath. Your lawyer is able to cross-examine doctor and challenge their conclusions. The jury will then decide whether the plaintiff has established the essential elements of their case such as obligation, breach, causation and injury.

Negligence

The plaintiff must convince jurors, in a case of medical malpractice, that it is more than likely that the physician violated his or her responsibilities as physician and that the mistakes led to injuries. The plaintiff's attorney has to demonstrate this using evidence collected during discovery. This includes requesting documents, including medical records from all parties involved in a lawsuit. Depositions, in which statements are made under oath and recorded for trial, are also a part of this procedure.

A doctor breached the professional duties of a doctor when he/she did something that a reasonably prudent physician would not do in similar circumstances. It must be established that the breach was the cause of the injury directly to the patient. This is known as causation or proximate cause. For attorneys instance when a patient is taken to the hospital for a hernia procedure and then has his or her 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 specific legal period, referred to as the statute of limitations. This is different from state to state. The victim must prove that the negligent care caused injury, and then show how much compensation they are entitled to.

Damages

You should be compensated for any injuries that you've suffered due to medical negligence. At Scaffidi & Associates, we can help you receive the full and fair compensation for your loss.

The first step is filing and serving a summons and complaint to all defendants named in the lawsuit. The parties then begin discovery, a procedure in which documents and statements are disclosed under an oath. During discovery, medical records and notes from a doctor are usually requested.

In the majority of states, you need to prove four things to be compensated for any injuries caused by medical malpractice law firms malpractice such as a duty due to the healthcare provider and a breach of the duty; a causal relationship between the breach and the injury suffered by the patient; and damages that flow from the injury. If your attorney can demonstrate all of these elements in a medical negligence claim, you will have an impressive case.

In certain instances the court can make punitive damages available, which are intended to penalize the culprit and deter others from committing the same offense. However, this isn't the norm in medical malpractice cases, as the courts require extremely clear evidence of malice to make these extraordinary awards.