How to File a Medical Malpractice Case

A patient who finds an object that is foreign, for example, surgical clamps in her body after gall bladder surgery can sue for medical negligence. A successful lawsuit must establish the elements of medical malpractice: duty, deviance from the norm and direct cause.

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

Causes of Injury

A claim for medical malpractice can be filed by the person who was injured or a legal representative. This could be a spouse or adult child guardian, parent or administrator of an estate belonging to a deceased patient, depending on the circumstances. In a case of medical malpractice the defendant is the health care provider. It could be a licensed nurse, doctor or therapist.

Expert testimony is usually required in cases of malpractice. Medical experts are required to determine if the doctor did what was required of medical care within their specific area of expertise. They must also testify as to the harm resulting from the actions or inactions of a doctor.

The injuries that result from malpractice and negligence can be very severe. A misdiagnosis could have grave consequences, such as a life-threatening condition. Other types of injuries include operating on the incorrect body part or putting surgical instruments in the patient.

In order to prove a malpractice claim the patient has to prove four legal elements: a duty that the doctor owed them; a breach in this duty; a subsequent injury and damages. In certain states, such as New York, the law sets a limit on the amount of money that could be awarded in an injury resulting from a malpractice claim.

Causation

The injury element, also referred to as causation is one of the most crucial elements in a medical malpractice case. To establish causation the plaintiff must demonstrate that their injury was caused by the doctor's negligence. This is a difficult task due to a variety reasons.

For instance, many injuries that are the subject of a medical malpractice lawsuit are the result of long-term or ongoing illnesses that were present before treatment began. The statute of limitations on a medical malpractice case could be extended over a period of time, and injuries can develop slowly.

In these cases, proving that a medical professional's violation of the standard of care led to the injury is a challenge. However, the aggrieved patient might be able use the evidence gathered by the attorney, including medical documents and expert testimony.

During the discovery process, which is an integral part of the legal procedure for preparation for trial, your lawyer may ask for the disclosure of expert testimony and other evidence from lawyers of the defendants. The doctor who is representing the case will be asked to testify in a deposition. This is a declaration that's given under the oath. Your lawyer will be able to cross-examine doctor and challenge their findings. The jury will decide if the plaintiff has proven all the elements of the case including breach of duty and causation.

Negligence

If a claim for medical malpractice is filed in court, the plaintiff must to convince the jury that it was more likely than not that the doctor breached his or her professional duties and that those breached duties caused injuries. The lawyer representing the plaintiff must demonstrate this with evidence gathered through pretrial discovery, which entails seeking disclosure of documents, which includes medical records from all parties involved in the lawsuit. This process also involves swearing statements that are recorded and used in trial.

A doctor has breached their professional obligation if they did something a reasonable prudent physician would not have done in the same circumstances. However it must be proved that the breach directly caused injury to the patient. This is referred to as causation or proximate causes. For example the patient is admitted to the hospital for a hernia procedure and is then able to have his or her gall bladder removed instead. This is medical malpractice because the removal of the gall bladder did not benefit the patient.

Medical malpractice lawsuits must be brought within a legally defined period of time, referred to as the statute of limitations, that varies from state to state. The injured patient has to demonstrate that the treatment was substandard and caused injury, then they must prove what monetary compensation they're entitled to.

Damages

If medical negligence caused you to suffer an injury, you should be made whole. At Scaffidi & Associates, we will assist you in receiving full and fair compensation for your losses.

The first step is to file and serve a complaint and summons on all named defendants in the lawsuit. The parties then participate in discovery, a process by which documents and statements are made public under an oath. Medical records and notes of the doctor are typically sought during discovery.

In most states, you must establish four elements to be compensated for injuries incurred by medical malpractice which includes a duty to the healthcare provider and a breach of that duty; a causal relationship between the breach and the patient's injury and the damages that result from the injury. If your lawyer can prove all of these elements, you have an excellent case for financial recovery in a claim for medical malpractice lawyers malpractice.

In some cases the court can decide to award punitive damages that is designed to punish a wrongdoer, and deter others from engaging in similar conduct. But, this isn't often the case in medical malpractice cases as courts require clear evidence of malice to award these awe-inspiring awards.