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How to File a Medical Malpractice Case

If a patient discovers that an object foreign to the body, such as surgical clamps, is still inside her body after gall bladder surgery can pursue a medical malpractice suit. A successful claim has to prove the elements of medical negligence: duty, deviation from this duty and direct cause.

It is essential for our clients to establish a direct causal connection between the breach of duty and the damage, known as proximate causation.

Causes of Injury

A medical malpractice case can be filed by the injured patient or a person legally designated to represent them. Based on the circumstances, it could be the spouse of the patient or an adult child, parent, a guardian ad litem, or the executor or administrator of the estate of the patient who died. The plaintiff in a lawsuit for medical malpractice is the health professional. This could be a nurse, doctor, therapist or any other health professional.

Expert testimony is often required in cases of malpractice. Medical experts must determine if the medical professional was acting in accordance with the standards of care in their particular field of expertise. They must also testify to the damage caused by the doctor's actions or inactions.

Injuries caused by negligence and mistakes can be catastrophic. A mistake in diagnosis can have devastating consequences, like the possibility of a life-threatening illness. Other types of injuries include performing surgery on the wrong body part or putting instruments inside the patient during surgery.

The patient must establish four legal elements of a malpractice claim which include a duty to the patient by the physician and a breach of this obligation; a harm caused by the breach; and the consequential damages. In some states, such as New York, the law puts a limit on amount that can be awarded in a malpractice claim.

Causation

The injury element is called the causation. It is one of the most important elements in a medical malpractice claim. To establish causation, the plaintiff must show that they sustained their injury on the basis of probabilities because of the negligence of a physician. This can be a difficult task due to a variety of reasons.

For instance, many injuries that are the subject of a medical-malpractice lawsuit are the result of long-term or ongoing conditions that were already present prior to treatment. Often, the statute of limitations for a medical malpractice claim extends out over a number of years and the injuries may develop slowly.

In these cases, proving that a medical professional's breached the standard of care and led to the injury is a challenge. The attorney may have collected evidence, like medical records and expert testimony that the injured person could use.

During the discovery process, which is a part of the legal procedure for preparing for trial, your lawyer may request disclosure of expert testimony and other evidence from lawyers of the defendants. The doctor defending the lawsuit is then called to testify during deposition, which is testimony that is under the oath. Your lawyer is able to cross-examine doctor and contest their findings. The jury will decide whether the plaintiff has substantiated all the elements of the case including breach of duty and causation.

Negligence

The plaintiff must convince the jury in a case of medical malpractice to show that it is likely that the physician violated his or her obligations as a doctor and that these mistakes led to injuries. The plaintiff's lawyer must demonstrate this by presenting evidence through pretrial discovery, which includes the disclosure of documents, including 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 was in breach of his or her professional obligations when he/she did something that a prudent physician would not do in similar circumstances. However it must be established that the breach directly caused injury to the patient. This is referred to as causation or proximate causes. Patients may go to the hospital in order to repair a hernia, and instead, have their gall bladder removed. This is medical malpractice as the removal of the gall bladder was not beneficial to the patient.

Medical malpractice lawsuits must be filed within a legally regulated period of time, also known as the statute of limitations, that varies from state to state. The person who suffered the injury must show that the inadequate treatment caused injury, and then they must show what compensation they're entitled to.

Damages

If medical negligence has led you to suffer injury, you are entitled to be made whole. Scaffidi & Associates can help you receive 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 engage in discovery, a process in which documents and statements are revealed under oath. During discovery medical records and notes from a doctor are usually requested.

In most states, in order to be eligible for compensation for injuries incurred by malpractice, you have to prove four things that include a duty of care due to the healthcare provider, a breach of this obligation; a causal connection between the breach and injury and damages resultant from the injury. If your lawyer can prove all of these elements, you have an excellent case for financial recovery in a medical negligence claim.

In some cases, the court may make punitive damages a possibility that is intended to punish a wrongdoer, and deter others from engaging in similar crimes. It is not common however, especially in medical malpractice lawyer malpractice cases. The courts must have clear evidence of malice before they are able to award these extraordinary damages.

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