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How to File a Medical Malpractice Case

A patient who finds that an object that is foreign like surgical clamps, medical malpractice remains in her body after gall bladder surgery could file a medical malpractice lawsuit. A successful claim must establish the legal elements of medical negligence: duty, deviation from this obligation, direct cause and injury.

Our clients must establish a direct connection between the breach of duty, and the injury. This is referred to as proximate cause.

Cause of Injury

A medical malpractice lawsuit can be filed by the person who was injured or an attorney. Depending on the circumstances, this 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. In a case of medical malpractice, the defendant is the health care provider. This could be a nurse, doctor, therapist or any other health care professional.

Expert testimony is typically required in malpractice cases. Medical experts are required to testify as to whether the medical professional performed his duties in accordance with the standard of medical care within their specific field of expertise. They also have to testify about the harm caused by the doctor's actions or inactions.

Injuries caused by negligence and malpractice can be severe. A misdiagnosis can have serious consequences, like the possibility of a life-threatening illness. Other kinds of injuries include operating on the wrong part or putting instruments inside the patient during surgery.

In order to establish a malpractice claim the patient must demonstrate four legal elements: a duty the doctor owed them; a breach in this duty; a resultant injury; and damages. In some states, like New York, the law restricts the amount that can be awarded in an action for malpractice.

Causation

The injury element, also known as causation, is among the most important elements in a medical malpractice case. To establish causation, the plaintiff must show that they sustained their injury on the basis of probabilities as a result of the physician's negligence. This can be a difficult task due to a variety of reasons.

Many of the injuries that are the basis for a medical negligence lawsuit result from long-term or ongoing conditions that existed prior to when treatment began. The statute of limitations on a medical malpractice lawsuit can be extended over several years and injuries may develop slowly.

In these cases it is often difficult to prove that a specific medical professional's breach of standards of care caused the injury. The attorney could have collected evidence, such as medical records and expert testimony that the injured person may use.

In the discovery process as part of the legal process for the preparation of a trial your lawyer can request the defendants' lawyers disclose expert testimony and other documents. The doctor defending the lawsuit is then called to testify during a deposition, which is testimony given under the oath. Your lawyer will be able to challenge the doctor's findings and cross-examine them. The jury will decide then if the plaintiff has proved the essential elements of their case such as breach of duty, causation, breach of duty and injury.

Negligence

The plaintiff must convince the jury, when bringing a claim for medical malpractice in court, that it is more likely that the doctor violated the obligations of a doctor and that these actions led to injury. The plaintiff's attorney has to prove this by using evidence gathered during pretrial discovery. This involves seeking documents, such as medical records as well as other documents from all parties in a lawsuit. This process also involves sworn declarations that are recorded and used in trial.

A doctor breached the professional duties of a doctor when he/she did something that a reasonably prudent doctor would not do in the same circumstances. However it must be established that the breach directly caused the injury to the patient. This is referred to as causation, or proxy causes. A patient might visit a hospital to repair a hernia, but instead end up having their gall bladder removed. This is medical negligence since the procedure did not benefit the patient.

Medical malpractice lawsuits must be filed within a legal timeframe, also known as the statute of limitations. This differs from state-to-state. The victim must prove that the negligence caused injury, and then prove how much monetary compensation he or her deserves.

Damages

If medical negligence has caused you to suffer a traumatic injury, you have the right to be made whole. At Scaffidi & Associates, we will assist you in receiving the full and fair compensation you deserve for your losses.

The first step in a lawsuit is to file and serve a complaint, summons and other documents on all defendants. The parties participate in discovery. It is a process where documents and evidence are revealed under the oath. Medical records and notes of a doctor are typically requested during discovery.

In the majority of states, to get compensation for injuries caused by malpractice, you have to establish four elements: a duty of care that is due to the healthcare provider and a breach of that obligation; a causal connection between the breach and injury; and damages resulting from the injury. If your attorney can prove all of these elements in a medical malpractice claim, you will have an impressive case.

In certain instances courts may make punitive damages available, which are designed to punish the perpetrator and discourage others from committing the same offense. However, this isn't the norm in medical malpractice cases, since courts require evident proof of malice in order to award these extraordinary awards.