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How to File a Medical Malpractice Case

If a patient discovers that a foreign object like surgical clamps, remains in her body after gall bladder surgery may pursue a medical malpractice suit. A successful claim must demonstrate the elements of medical malpractice: duty, deviation from this duty and direct cause.

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

Cause of Injury

A medical malpractice case can be filed by the injured patient or by a person legally appointed to represent them. This could be a spouse, Vimeo adult child, parent, guardian or administrator of the estate of a deceased patient depending on the circumstances. The defendant in a suit for medical negligence is the health professional. It could be a licensed doctor, nurse or therapist.

Expert testimony is typically required in cases of malpractice. Medical experts must testify as to whether or the medical professional adhered to the standards of treatment in their specific field. They must also testify as to the harm caused by the actions or inactions of a doctor.

Injuries resulting from malpractice and negligence can be extremely serious. For example, a misdiagnosis of a health condition can have life-threatening effects. Other types of injuries include performing surgery on the wrong body part or leaving instruments inside the patient during surgery.

To prove a malpractice case, the patient must prove four legal elements: a duty the doctor owed to them; a breach of the breach; a resulting injury; and damages. In some states, such as New York, the law restricts the amount of money that could be awarded for an injury resulting from a malpractice claim.

Causation

The injury element, also known as causation, is among the most important aspects of medical malpractice cases. To prove causation, the plaintiff must demonstrate that their injury was caused by the doctor’s negligence. This can be a difficult task for several reasons.

Many of the injuries that are the basis for a medical negligence lawsuit stem from long-term illnesses or conditions that existed prior to when treatment started. The statute of limitations on a medical malpractice lawsuit can be extended for a number of years and the development of injuries can happen slowly.

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

During the process of discovery that is part of the legal procedure for preparation for a trial, your attorney can request that the lawyers of the defendants provide expert testimony and other documents. The doctor defending the lawsuit will then be required to testify in depositions, which are testimony under the oath. Your lawyer may challenge the doctor’s findings and cross-examine them. The jury will decide whether the plaintiff has substantiated all the elements of the case including breach of duty and causation.

Negligence

When a medical malpractice claim is filed, the plaintiff will have to convince the jury that it was more likely than not that the doctor violated professional obligations and that those breached duties caused injury. The attorney representing the plaintiff must demonstrate this using evidence obtained during discovery. This involves seeking documents, such as medical records as well as other documents from all parties in the lawsuit. The process also involves sworn statements that are recorded and used at trial.

A doctor has breached their professional obligation when they did something that a reasonable prudent physician would not have done in similar circumstances. However it must be proven that the breach directly caused the injury to the patient. This is referred to as causation, or causal proximate causes. For instance when a patient is taken to the hospital for a procedure to treat a hernia and is then able to have his or his gall bladder removed instead. This is herkimer medical malpractice lawyer negligence since the procedure did not benefit the patient.

Medical malpractice lawsuits must be filed within a legally-defined time frame, known as the statute of limitations which is different for each state. The victim must prove that the negligent care caused injury and then prove how much monetary compensation he or she is entitled to.

Damages

If medical negligence has caused you to sustain an injury, you should be made whole. Scaffidi & Associates can help you receive full and fair compensation for your losses.

The first step in a lawsuit is to make a complaint and serve it or summons, as well as other documents on all defendants. The parties are involved in discovery. This is a procedure in which documents and declarations are made public under an oath. Medical records and notes of the doctor are typically sought during discovery.

In most states, you need to prove four things in order to be compensated for injuries incurred by medical malpractice: a duty owed by the healthcare provider and a breach of that duty; a causal connection between the breach and the patient’s injury; and damages that flow from the injury. If your lawyer can prove all these elements of a medical negligence claim, you’ll have an impressive case.

In some cases the court can award punitive damages, which are designed to punish the perpetrator and discourage others from engaging in the same conduct. This is rare however, in medical malpractice cases. The courts must have clear evidence of intent to commit a crime before they are able to give these extraordinary damages.