How to File a Medical Malpractice Case
A patient who discovers that a foreign object, such as surgical clamps, remains inside her body following gall bladder surgery may pursue a medical malpractice suit. A successful lawsuit must establish the elements of medical malpractice: duty, deviance from this duty and direct reason.
Our clients must establish a direct link between the breach of duty and the injury. This is referred to as the proximate reason.
The reason for injury
A medical malpractice claim can be filed by the person who has been injured or a person legally designated to represent them. Depending on the circumstances this could be the spouse of the patient or an adult child, parent, a guardian ad litem, or the administrator or executor of the estate of the deceased patient. The plaintiff in a medical malpractice lawsuit is the health care provider. This could be a doctor, nurse, therapist or any other licensed health care professional.
Expert testimony is often required in cases of malpractice. Medical experts are required to testify as to whether the medical professional acted within the standard of medical care within their special area of expertise. They also have to testify about injuries caused by doctor’s actions or inactions.
The consequences of malpractice and negligence can be very severe. A misdiagnosis can have serious consequences, like the possibility of a life-threatening illness. Other types of injuries can include operating on the wrong body part or leaving surgical instruments inside the patient.
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 that duty; an injury caused by the breach and the resulting damages. In certain states, like New York the law limits the amount of money that can be awarded for a malpractice case.
Causation
The injury element, also referred to as causation, is one of the most important elements in medical malpractice cases. To prove causation, the plaintiff must demonstrate that their injury was caused by the doctor’s negligence. This can be a challenging task due to a variety of reasons.
Many injuries that are the basis for a medical negligence lawsuit result from long-term illnesses or conditions that existed prior to when treatment began. Often, the statute of limitations for a claim involving medical malpractice extends over a variety of years, and the injuries may develop slowly.
In these instances the proof that a medical professional’s breached the standard of care which led to the injury is not easy. However, the patient who is afflicted could be able to use the evidence gathered by the attorney, including medical documents and expert testimony.
During the discovery process, which is an integral part of the legal procedure for prepping for trial, your lawyer will ask for the disclosure of expert testimony and other evidence from defendants’ attorneys. The doctor who is defending the case will be asked to testify in deposition. This is a testimony which is under an oath. Your lawyer will be able to cross-examine doctor and challenge the doctor’s findings. The jury will decide whether the plaintiff has proved all the elements of the case, including duty, breach and causation.
Negligence
The plaintiff must convince the jury, when filing a claim for medical malpractice to show that it is more likely that the doctor violated the obligations of medical professional and that these actions led to injury. The plaintiff’s lawyer has to demonstrate this with evidence gathered through pretrial discovery, which entails asking for disclosure of documents such as medical records from all parties who are involved in the lawsuit. This process also includes swearing statements that are recorded and used in trial.
A doctor has violated their professional duty by doing something that a reasonable prudent physician would not have done under similar circumstances. However, it must be proven that the breach directly caused injury to the patient. This is referred to as causation or proximate causes. For example, a patient goes to the hospital for a hernia operation and is later told that he or the gall bladder removed instead. This is medical negligence since the procedure was not beneficial to the patient.
Medical malpractice lawsuits must be brought within a legally prescribed period of time, also known as the statute of limitations which is different for each state. The victim must demonstrate that the treatment was substandard and caused injury, then they have to prove the amount of compensation they deserve.
Damages
You are entitled to compensation for any injuries that you’ve suffered due to medical negligence. Scaffidi & Associates can help you receive fair and full compensation for your losses.
The first step in a lawsuit is to make a complaint and serve it or summons, as well as other documents on all defendants. The parties then proceed to discovery, a process in which documents and statements are disclosed under the oath. Medical records and the doctor’s notes are typically requested during discovery.
In most states, you have to prove four things to be compensated for the injuries caused by los alamitos medical malpractice law firm malpractice such as a duty due to the healthcare provider and a breach of the obligation; a causal connection between the breach and the patient’s injury and the damages that result from the injury. If your attorney can establish all of these elements, you will have an argument for financial compensation in a medical malpractice claim.
In some instances the court could decide to award punitive damages, which is meant to punish the perpetrator and deter others from engaging in similar crimes. This isn’t often however, in elwood Medical malpractice Lawyer – vimeo.com – malpractice cases. The courts must have very clear evidence of malice before they may make these extraordinary awards.