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How to File a Medical Malpractice Case

A patient who finds that a foreign object, such as surgical clamps, is still inside her body following gall bladder surgery could pursue a medical malpractice suit. A successful claim has to prove the elements of medical malpractice: duty, deviance from the norm and direct cause.

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

The reason for injury

A medical negligence case may be filed by the injured patient or by a person legally appointed to represent them. This could be a spouse or adult child or parent, guardian or administrator of the estate of a deceased person, based on the circumstances. In a medical negligence case the defendant is the health care provider. This could be a nurse, doctor, therapist or any other health care professional.

Expert testimony is typically required in cases of malpractice. Medical experts are required to be able to testify that the doctor performed his duties in accordance with the standard of medical care within their particular field of expertise. They also have to testify about injuries caused by doctor's actions or inactions.

The consequences of malpractice and negligence can be extremely serious. For instance, a misdiagnosis of a health condition can result in life-threatening consequences. Other types of injuries involve operating on the wrong body part or putting surgical instruments in the patient.

The patient must establish four legal elements in a malpractice claim the duty owed to the patient by the physician; a breach of this obligation; an injury resulting by the breach; and the resulting damages. In certain states, such as New York, the law puts a limit on amount of money that could be awarded in the malpractice claim.

Causation

The element of injury is known as the causation. It is among the most important aspects of a medical malpractice claim. To prove causation, the plaintiff must demonstrate that their injury was the result of the doctor's negligence. This is a challenging job due to various reasons.

Many injuries that are the basis for a medical negligence lawsuit result from long-term illnesses or issues that existed before treatment began. Often, the statute of limitations for a claim involving medical malpractice is extended over a period of years and the injuries can develop gradually.

In these situations it can be difficult to prove that a particular medical professional's breach of standard of care led to the injury. However, the person who was harmed may be able to use the evidence gathered by the attorney, like medical records and expert testimony.

During the discovery process which is an element of the legal process preparation for a trial, your attorney can request that the lawyers for the defendants be made aware of expert testimony and other documents. The doctor who is defending the case will be required to take deposition. This is a declaration that is given under oath. Your lawyer can challenge the doctor's findings and cross-examine them. The jury will decide whether the plaintiff has substantiated the elements of the case including breach of duty, breach of contract and causation.

Negligence

The plaintiff must convince jurors, when bringing a lawsuit for medical malpractice in court, that it is more likely that the doctor acted in violation of his or her obligations as a physician and that those breaches resulted in injury. The plaintiff's lawyer has to demonstrate this by presenting evidence through pretrial discovery, which involves seeking disclosure of documents, which includes medical records from all parties involved in the lawsuit. Depositions, in which the statements are made under oath and recorded for use in trial, are also part of this procedure.

A doctor has violated their professional duty by doing something that reasonable and prudent doctors would not have done under the same circumstances. It must be established that the breach resulted in injury directly to the patient. This is referred to as causation, or the proximate cause. For example an individual goes to the hospital for a hernia surgery and then has his or the gall bladder removed instead. This is medical malpractice because the removal of the gall bladder was not beneficial to the patient.

Medical malpractice lawsuits must be brought within a legally prescribed period of time, referred to 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 deserve.

Damages

You deserve to be compensated for any injuries you have suffered as a result of medical negligence. Scaffidi & Associates can help you receive full and fair compensation for your losses.

The first step is filing and serving an order and complaint on all named defendants in the lawsuit. The parties participate in discovery. This is where documents and evidence are revealed under the oath. During discovery medical malpractice lawsuit records and notes from a doctor are typically requested.

In most states, in order to receive compensation for injuries sustained by malpractice, you need to establish four elements including a duty of good faith that is due to the healthcare provider and a breach of that duty; a causal link between the breach and injury and damages caused by the injury. If your attorney can establish all of these elements, you have an argument for financial recovery in a medical negligence claim.

In some instances, courts can give punitive damages, which are intended to punish the culprit and deter others from engaging in similar misconduct. This is not the norm however, especially in medical malpractice cases. The courts must be able to prove evidence of malice before they may give these extraordinary damages.

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