How to File a
Medical Malpractice Law Firm Malpractice Case
A patient who discovers an object that is foreign like surgical clamps, is still inside her body after gall bladder surgery could be able to file a lawsuit for medical malpractice. A successful lawsuit must prove the legal aspects of medical negligence: duty, deviance from this duty, direct cause, and injury.
Our clients must establish a direct link between the breach of duty, and the injury. This is known as the proximate cause.
Causes of Injury
A medical malpractice lawsuit can be filed by the injured person or an attorney. Depending on the circumstances, it could be the spouse of the patient, an adult child or parent, guardian ad-litem or executor or administrator of the estate of the deceased patient. In a case of medical malpractice, the defendant is the health care provider. This could be an accredited doctor, nurse or therapist.
The majority of cases involving malpractice involve many expert witnesses. Medical experts must be able to prove whether or not the health care provider adhered to the standards of treatment in their specific field. They also have to testify about the injury caused by the doctor's actions or inactions.
Injury caused by negligence and mistakes can be devastating. For example, a misdiagnosis of a medical condition could cause life-threatening complications. Other kinds of injuries be caused by operating on an incorrect body part or putting surgical instruments in the patient.
In order to establish a malpractice claim, the patient must prove four legal elements: a duty that the doctor owed to them; a breach of this duty; a resultant injury; and damages. In some states, like New York, the law places a limit on the amount of money that can be awarded for an action for malpractice.
Causation
The element of injury is called the causation. It is one of the most important elements in a medical malpractice claim. To prove causation, a plaintiff must show that they suffered an injury on a balance of probabilities as a result of the physician's negligence. This can be a difficult task due to a variety of reasons.
A lot of the injuries that form the basis of a medical negligence lawsuit result from long-term illnesses or conditions which were present before treatment began. Often the statute of limitation for a claim involving medical malpractice extends over a number of years, and injuries may develop slowly.
In these situations, it is difficult to prove that a certain medical professional's breach of standard of care led to the injury. The attorney may have gathered evidence, such as expert testimony and medical records which the injured patient may use.
During the discovery process which is an element of the legal procedure for preparation for a trial, your lawyer may 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 asked to take deposition. This is a declaration that is given under oath. Your lawyer may challenge the doctor's findings and cross-examine them. The jury will decide whether the plaintiff has established the facts of the case including breach of duty and causation.
Negligence
When a medical malpractice claim is filed the plaintiff must to convince the jury that it was more likely than not that the physician did not perform his or her professional duties and that the breaches caused injuries. The plaintiff's lawyer has to prove this using evidence gathered through pre-trial discovery, which involves asking for disclosure of documents such as medical records from all parties who are involved in the lawsuit. Depositions, in which statements are made under oath, and recorded for use in trial, are also part of this procedure.
A doctor was in breach of his or her professional obligations in the event that he or her did something that a reasonably prudent physician would not do under the same circumstances. However, it must be proven that the breach directly caused injury to the patient. This is referred to as causation or proximate cause. For instance an individual goes to the hospital for a procedure to treat a hernia and is then able to have his or his gall bladder removed instead. 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 defined 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 caused injury, then they must prove what monetary compensation they are entitled to.
Damages
You are entitled to compensation for any injuries that you've suffered as a result of medical negligence. Scaffidi & Associates can help you receive a fair and complete compensation for your losses.
The first step in a lawsuit is to file and serve a complaint as well as summons and other documents on all defendants. The parties then proceed to discovery, a process in which documents and statements are disclosed under an oath. Medical records and the notes of the doctor are usually requested during discovery.
In most states, in order to receive compensation for injuries sustained by malpractice, you have to establish four elements: a duty of care due to the healthcare provider, a breach of this obligation; a causal connection between the breach and injury; and damages resulting from the injury. If your attorney can demonstrate all of these elements of a medical negligence claim, you will have a strong case.
In certain instances the court can award punitive damage that is designed to punish the wrongdoer and deter others from engaging in similar misconduct. This isn't often however, in medical malpractice cases. The courts must be able to prove evidence of malice before they are able to make these extraordinary awards.