Write About Everything

How to File a Medical Malpractice Case

A patient who discovers a foreign object, such as surgical clamps, remains in her body after gall bladder surgery could file a medical malpractice lawsuit. A successful lawsuit must establish 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 known 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 could be the spouse of the patient or an adult child parent, guardian ad-litem or executor or administrator of the estate of the patient who died. In a medical malpractice case, the defendant is the health care provider. It could be an accredited doctor, nurse or therapist.

Expert testimony is usually required in cases of malpractice. Medical experts are required to testify whether or the medical professional adhered to the standards of treatment in their specific field. They also have to testify to the harm that was caused by the doctor’s actions or inactions.

Injury caused by negligence and mistakes can be catastrophic. A misdiagnosis could have grave consequences, such as the possibility of a life-threatening illness. Other kinds of injuries include operating on the wrong body part or leaving instruments inside the patient during surgery.

To prove a malpractice claim the patient must prove four legal elements: a duty the doctor owed them; a breach in this duty; a subsequent injury; and damages. In certain states, like New York the law limits the amount of money that can be awarded for a malpractice claim.

Causation

The injury element, also known as causation, is one of the most crucial elements in medical malpractice cases. To establish causation, the plaintiff must prove that their injury was caused by the physician’s negligence. This is a challenging job due to various reasons.

A lot of the injuries that form the basis for a medical negligence suit result from chronic issues that existed before treatment started. The time-limit for a medical malpractice lawsuit can be extended for a number of years and injuries may develop slowly.

In these instances it is difficult to prove that a medical professional’s breached the standard of care led to the injury can be difficult. The attorney may have collected evidence, such as expert testimony and medical records which the injured patient can use.

In the discovery process which is an element of the legal process preparing for a trial, your attorney can request that the defendants’ lawyers disclose expert testimony and other documents. The doctor who is defending the case will be asked to take a deposition. This is a statement that’s given under the oath. Your lawyer is able to cross-examine doctor and challenge their findings. The jury will decide then if the plaintiff has proven the necessary elements of their case including obligation, breach, causation and injury.

Negligence

If a claim for medical malpractice is filed the plaintiff has to convince the jury that it was more likely than not that the physician committed a breach of professional duties and that those breaches caused harm. The lawyer for the plaintiff must prove this using evidence gathered through pretrial discovery, which involves requesting disclosure of documents including medical records from all parties involved in the lawsuit. This process also involves sworn statements that are recorded and used at trial.

A doctor has breached their professional duty in the event that they did something a reasonable and prudent doctor would not have done under 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 instance when a patient is taken to the hospital for a hernia procedure and is later told that he or his gall bladder removed instead. This is medical malpractice attorney malpractice since the removal of the gall bladder was not beneficial to the patient.

Medical malpractice lawsuits must be filed within a legally regulated time frame, known as the statute of limitations which is different for each state. The patient who is injured must prove that the substandard care resulted in injury, and then demonstrate the amount of compensation he or she deserves.

Damages

If a medical error has caused you to suffer a traumatic injury, you should be made whole. At Scaffidi & Associates, we can help you receive an adequate and fair amount of compensation for your losses.

The first step in a lawsuit is to file and serve a complaint along with summons and other papers on all defendants. The parties then proceed to discovery, in which documents and statements are made public under oath. Medical records and the notes of a doctor are typically requested during discovery.

In most states, you need to demonstrate four elements in order to be compensated for any injuries caused by medical malpractice attorneys malpractice which includes a duty to the healthcare provider; a breach of that duty; a causal link between the breach and the injury suffered by the patient as well as damages that result from the injury. If your lawyer can prove all these elements in a medical negligence claim, you will have an impressive case.

In certain instances the court could give punitive damages, which is meant to penalize a wrongdoer and discourage others from committing similar conduct. However, this is not the norm in medical malpractice cases as courts require precise proof of malice before they can give these extraordinary awards.