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How to File a Medical Malpractice Case

If a patient discovers that an object foreign to her like surgical clamps, remain inside her body following gall bladder surgery could pursue a medical malpractice suit. A successful claim must prove the elements of medical malpractice: duty, deviation from the norm and direct cause.

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 injured patient or by a person legally appointed to represent them. Depending on the circumstances, this may be the spouse of the patient or an adult child parent, a guardian ad-litem or administrator or executor of the estate of the patient who died. In a medical negligence case the defendant is the health care provider. It could be a licensed doctor, nurse or therapist.

The majority of cases involving malpractice involve an abundance of expert testimony. Medical experts must testify as to whether or the medical professional adhered to the standards of care in their specific field. They also have to testify about the harm caused by the physician's actions or inactions.

Injuries caused by negligence and malpractice can be severe. A misdiagnosis could have grave consequences, including a life-threatening condition. Other kinds of injuries include operating on the wrong body part or leaving instruments inside the patient during surgery.

The patient must prove four legal elements in a malpractice claim: a duty owed to the patient by the physician or a breach of the duty; an injury caused by the breach and the resulting damages. In some states, like New York, the law places a limit on the amount that can be awarded for an action for malpractice.

Causation

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

Many of the injuries that are the basis of a medical negligence lawsuit stem from long-term illnesses or illnesses that existed before treatment began. Often, the statute of limitations for a medical negligence claim extends over a number of years, and the injuries may develop slowly.

In these instances it is difficult to prove that a medical professional's violation of the standard of care led to the injury is not easy. The attorney could have gathered evidence, like medical records and expert testimony that the patient who was injured can use.

During the discovery process, which is a part of the legal process for preparing for trial, your lawyer could ask for the disclosure of expert testimony and other documents from the lawyers of the defendants. The doctor defending the lawsuit will be asked to give evidence during depositions, which are testimony under the oath. Your lawyer may cross-examine the doctor and challenge the doctor's findings. The jury will decide whether the plaintiff has established the facts of the case including breach of duty and causation.

Negligence

If a claim for medical malpractice is filed, the plaintiff will have to convince the jury that it was more likely than not that the doctor did not perform his or her professional duties and that those breached duties caused injuries. The plaintiff's lawyer must demonstrate this by presenting evidence through pretrial discovery, which involves asking for disclosure of documents such as medical records from all parties who are involved in the lawsuit. This also includes swearing statements that are recorded and used in trial.

A doctor breached his or her professional duty when he/she did something that a reasonably prudent doctor would not do under similar circumstances. It must be proved that the breach resulted in injury directly to the patient. This is referred to as causation or proximate cause. For instance the patient is admitted to the hospital for a hernia operation and is later told that he or her gall bladder removed instead. This is medical negligence since the procedure was not beneficial to the patient.

Medical malpractice lawsuits must be filed within a legally defined period of time, referred to as the statute of limitations, which is different for each state. The victim must prove that the substandard treatment caused injury, then they must show what compensation they deserve.

Damages

If medical negligence caused you to suffer injury, you are entitled to be compensated. Scaffidi & Associates can help you receive fair and full compensation for your losses.

The first step is to file and serve the complaint and summons to all named defendants in the lawsuit. The parties engage in discovery. This is a procedure which involves the disclosure of documents and statements made public under an oath. During discovery medical records and notes from a doctor are usually requested.

In most states, you have to prove four things to be compensated for any injuries caused by medical malpractice that is a duty owed by the healthcare provider in breach of that duty; a causal link between the breach and the injury suffered by the patient and the damages that result from the injury. If your attorney can establish all of these elements, you can make a an extremely strong case for financial recovery in a medical malpractice attorneys malpractice case.

In some instances the court can give punitive damages, which is meant to penalize a wrongdoer and discourage others from committing similar acts. It is not common however, in medical malpractice cases. The courts must have very clear evidence of malice before they are able to give these extraordinary damages.