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How to File a Medical Malpractice Case

A patient who finds that an object foreign to the body, such as surgical clamps, is still inside her body after gall bladder surgery may file a medical malpractice lawsuit. A successful lawsuit must establish the elements of medical malpractice: duty, deviance from this duty and the direct reason.

It is essential for our clients to establish a direct link between the breach of duty and the injury called proximate causation.

Cause of Injury

A medical malpractice claim can be filed by the injured person or a legal representative. Based on the specific circumstances, this could be a spouse of the patient or an adult child parent, a guardian ad-litem or administrator or executor of the estate of the deceased patient. In a medical negligence case, the defendant is the health care provider. It could be an accredited nurse, doctor or therapist.

Expert testimony is usually required in cases of malpractice. Medical experts are required to testify on whether or the medical professional adhered to the standards of care for their particular area of expertise. They must also testify to the damage caused by the actions or inactions of a doctor.

Injuries that result from malpractice or negligence can be quite severe. For instance, a wrong diagnosis of a health issue could have life-threatening consequences. Other types of injuries include operating on the wrong part or leaving instruments inside the patient during surgery.

The patient must establish four legal elements in a malpractice case: a duty owed to the patient by the doctor; a breach of this duty; injury caused by the breach and the consequential damages. In certain states, such as New York the law limits the amount of money that can be awarded for a malpractice case.

Causation

The injury element, also referred to as causation, is one of the most important elements of a medical malpractice case. To prove causation, a plaintiff must demonstrate that they sustained the injury based on a balance of probabilities because of the physician's negligence. This can be a challenging task for several reasons.

For example, many injuries that are the subject of a medical malpractice lawsuit arise from long-term or ongoing conditions that were already in the process of being treated prior to. Often the statute of limitation for a medical malpractice lawsuit extends out over a number of years, and the injuries may develop slowly.

In these cases it is often difficult to prove that a particular medical professional's breach of the standard of care led to the injury. However, the aggrieved patient could be able to use evidence collected by the attorney, including medical documents and expert testimony.

During the discovery process, which is a part of the legal procedure for prepping for trial, your lawyer will request disclosure of expert testimony and other evidence from lawyers representing the defendants. The doctor who is defending the lawsuit will then be asked to testify during depositions, which are testimony that is under an oath. Your lawyer is able to cross-examine doctor and contest their findings. The jury will decide if the plaintiff has proven the elements of the case, including duty, breach and causation.

Negligence

When a medical malpractice claim is filed 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 violations caused harm. The plaintiff's attorney must be able to prove this by utilizing evidence gathered during pretrial discovery. This includes seeking documents, such as medical records from all parties involved in a lawsuit. This also includes the recording of sworn statements and used at trial.

A doctor has violated their professional duty if they did something reasonable and prudent doctors would not have done under similar circumstances. However it must be proven that the breach directly caused injury to the patient. This is referred to as causation or proximate causes. A patient might visit a hospital to have a hernia fixed, however, they end up having their gall bladder removed. This is medical negligence because the removal did not benefit the patient.

Medical malpractice lawsuits must be brought within a legally prescribed period of time, referred to as the statute of limitations which varies by state. The injured patient must establish that the negligent care caused injury, and then he or she must show how much compensation he or she deserves.

Damages

If medical negligence caused you to suffer a traumatic injury, you have the right to be made whole. Scaffidi & Associates can help you receive a fair and complete compensation for your losses.

The first step in a lawsuit is to make a complaint and serve it along with summons and other papers on all defendants. The parties then engage in discovery. This is a procedure in which documents and declarations are presented under oath. During discovery, medical records and doctor's notes are typically requested.

In most states, you have to prove four things to be compensated for the injuries caused by medical malpractice which includes a duty to the healthcare provider; 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 can make a an extremely strong case for financial recovery in a medical malpractice claim.

In some instances, the court may award punitive damage that is designed to punish a wrongdoer, and deter others from engaging in similar acts. This is rare however, in medical malpractice cases. The courts must have a clear evidence of malice before they are able to make these extraordinary awards.