How to File a Medical Malpractice Case
A patient who discovers a foreign object, such as surgical clamps, remains inside her body following gall bladder surgery may file a medical malpractice lawsuit. A successful claim must establish the legal elements of medical negligence: duty, deviance from this duty, direct cause and malpractice injury.
It is vital for our clients to establish a direct link between the breach of duty and the damage which is referred to as proximate cause.
Causes of Injury
A medical malpractice case can be filed by the injured person or a person legally designated to represent them. This could be the spouse, adult child or parent, guardian or administrator of an estate belonging to a deceased patient, based on the circumstances. The defendant in a medical malpractice lawsuit is the health care provider. This could be an accredited doctor, nurse or therapist.
Expert testimony is typically required in malpractice cases. Medical experts are required to testify whether or not the health care provider adhered to the standards of treatment for their specific area. They also have to testify to the damage caused by the actions or inactions of the doctor.
Injury caused by negligence and mistakes can be catastrophic. A misdiagnosis can have serious consequences, like a life-threatening condition. Other types of injuries could include operating on the wrong part or putting instruments inside the patient during surgery.
In order to prove a malpractice case the patient must prove four legal elements: a duty that the doctor owed to them; a breach of this duty; a subsequent injury and damages. In certain states, like New York, the law places a limit on the amount that can be awarded in an action for malpractice.
Causation
The element of injury is known as the causation. It is one of most important elements in a medical malpractice claim. To prove causation the plaintiff must demonstrate that they suffered their injury on the balance of probabilities due to due to the negligence of the doctor. This can be a difficult task due to a variety of reasons.
For instance, many injuries that are the cause of a medical negligence lawsuit stem from long-term, or ongoing illnesses that were present before treatment began. The time limit for a medical malpractice attorneys malpractice case could be extended for a number of years, and injuries can develop slowly.
In these instances it is often difficult to prove that a specific medical professional’s violation of the standards of care caused the injury. The attorney could have gathered evidence, including medical records and expert testimony that the patient who was injured may use.
During the discovery process which is an element of the legal procedure for preparing for a trial, your lawyer may request that the lawyers representing the defendants disclose expert testimony and other documents. The doctor who is representing the case will be asked to appear in deposition. This is a statement which is under an oath. Your lawyer will be able to cross-examine doctor and contest their findings. The jury will then decide whether the plaintiff has established the necessary elements of their case including obligation, breach, causation and injury.
Negligence
The plaintiff must convince jurors, in a case of medical malpractice, that it is likely that the physician violated his or her obligations as a doctor and that these mistakes led to injuries. The lawyer representing the plaintiff must demonstrate this with evidence gathered through pretrial discovery, which involves asking for disclosure of documents such as medical records from all parties involved in the lawsuit. Depositions, in which statements are made under oath and recorded for trial, are also a part of this process.
A doctor has violated his or her professional obligation when he or she did something that a reasonably prudent doctor would not do in the same circumstances. However it must be proved that the breach directly caused injury to the patient. This is referred to as causation or causal proximate causes. For instance, a patient goes to the hospital for a hernia procedure and then has his or her gall bladder removed instead. This is medical malpractice because the removal of the gall bladder did not benefit the patient.
Medical malpractice lawsuits must be brought within a legally prescribed period of time, referred to as the statute of limitations which varies by state. The person who suffered the injury must demonstrate that the treatment was substandard and resulted in injury, and after that they must show what compensation they are entitled to.
Damages
You should be compensated for any injuries that you’ve suffered due to medical negligence. Scaffidi & Associates can help you get fair and complete compensation for your losses.
The first step in a lawsuit is to file and serve a complaint or summons, as well as other documents on all defendants. The parties then begin discovery, a procedure in which documents and statements are revealed under the oath. During discovery medical records and doctor’s notes will usually be requested.
In most states, you have to establish four elements to be compensated for the injuries caused by medical malpractice such as a duty due to the healthcare provider and a breach of that duty; a causal relationship between the breach and the injury suffered by the patient and the damages that result from the injury. If your lawyer can prove all of these elements, you will have an argument for financial recovery in a claim for medical malpractice.
In certain cases the court could give punitive damages that is designed to punish the wrongdoer and deter others from engaging in similar crimes. This isn’t often however, in medical malpractice cases. The courts must have clear evidence of malice before they can give these extraordinary damages.