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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, remain inside her body after gall bladder surgery could pursue a medical malpractice suit. A successful lawsuit must prove the legal aspects of medical negligence: duty, deviance from this duty, direct cause and injury.

It is vital for our clients to establish a direct relationship between the breach of duty and the damage called proximate causation.

The reason for injury

A medical malpractice claim may be filed either by the person who was injured or an attorney. Depending on the circumstances this could be a spouse of the patient or an adult child parent, guardian ad litem, or the executor or administrator of the estate of the deceased patient. In a medical negligence case the defendant is the health care provider. This could be a nurse, doctor or therapist, or any other health care professional.

Expert testimony is often required in cases of malpractice. Medical experts must provide evidence to prove that the health care provider acted within the standard of care in his or her special area of expertise. They also have to testify to the damage caused by the doctor's actions or inactions.

Injuries caused by negligence and mistakes can be devastating. For example, a mistake in the diagnosis of a health condition can result in life-threatening consequences. Other types of injuries involve operating on the wrong body part or leaving surgical instruments inside the patient.

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

Causation

The injury element, also referred to as causation, is one the most important aspects of medical malpractice cases. To prove causation, a plaintiff must demonstrate that they suffered an injury on a balance of probabilities because due to the negligence of the doctor. This can be a challenging task for a number of reasons.

Many injuries that are the basis for a medical negligence suit result from chronic conditions which were present before treatment started. Often, the statute of limitations for a claim involving medical malpractice extends over a number of years, and injuries can develop gradually.

In these cases it can be difficult to prove that a specific medical professional's breach of the standard of care led to the injury. However, the patient who was hurt could be able to use evidence gathered by the attorney, like medical records and expert testimony.

During the discovery process, which is an integral part of the legal process for prepping for medical malpractice lawsuits trial, your lawyer will request disclosure of expert testimony and other documents from lawyers representing the defendants. The doctor who is defending the case will be asked to testify in deposition. This is a testimonies that's given under oath. Your lawyer will be able to challenge the doctor's findings and cross-examine them. The jury will then decide if the plaintiff has proved the essential elements of their claim, which includes duty, breach, causation and injury.

Negligence

The plaintiff must convince the jury, in a case of medical malpractice in court, that it is likely that the doctor acted in violation of his or her responsibilities as a doctor and that these actions led to injury. The lawyer representing the plaintiff must demonstrate this by presenting evidence through pretrial discovery, which includes seeking disclosure of documents, which includes medical records from all parties who are involved in the lawsuit. This process also includes the recording of sworn statements and used in trial.

A doctor has breached their professional obligation when they did something that reasonable and prudent doctors would not have done under similar circumstances. It must be proven that the breach was the cause of the injury directly to the patient. This is called causation or proxy causes. A patient may go to the hospital in order to have a hernia fixed, but instead end up having their gall bladder removed. This is medical negligence as the procedure did not benefit the patient.

Medical malpractice lawsuits must be filed within a legally regulated period of time, referred to as the statute of limitations, that varies from state to state. The injured patient has to prove that the substandard treatment caused injury, and then they must show what compensation they are entitled to.

Damages

You deserve to be compensated for any injuries you've suffered as a result of medical negligence. At Scaffidi & Associates, we will assist you in receiving the full and fair compensation you deserve for your loss.

The first step is filing and serving a complaint and summons on all named defendants in the lawsuit. The parties then begin discovery, a procedure in which documents and declarations are made public under an oath. During discovery, medical records and notes from a doctor will usually be requested.

In the majority of states, to receive compensation for injuries caused by negligence, you must to prove four things that include a duty of care that is due to the healthcare provider, a breach of this duty; a causal link between the breach and injury; and damages that result from the injury. If your lawyer can prove all of these elements in a medical negligence claim, you will have an enviable case.

In certain cases courts may award punitive damages, which are designed to punish the perpetrator and discourage others from engaging in similar misconduct. This is rare however, particularly in medical malpractice cases. The courts must have very clear evidence of intent to commit a crime before they are able to make these extraordinary awards.