How to File a Medical Malpractice Case
A patient who discovers a foreign object such as surgical clamps within her body after gall bladder surgery could bring a lawsuit against a doctor for medical malpractice. A successful claim has to prove the elements of medical malpractice: duty, deviation from this duty and direct cause.
Our clients must establish a direct connection 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 victim or a legal representative. This could be the spouse, adult child, parent, guardian or administrator of the estate of a deceased person depending on the specific circumstances. In a case involving medical malpractice the defendant is the health care provider. This could be a nurse, doctor or therapist, or any other licensed health care professional.
Expert testimony is typically required in malpractice cases. Medical experts are required to provide evidence to prove that the healthcare provider did what was required of treatment in their special area of expertise. They must also testify regarding the injury that was caused by the doctor's actions or inactions.
Accidents caused by negligence or mistakes can be devastating. A misdiagnosis can have serious consequences, such as a life-threatening condition. Other kinds of injuries include performing surgery on the wrong body part or putting instruments inside the patient during surgery.
In order to establish a malpractice case, the patient must prove four legal elements: a duty that the doctor owed them; a breach of the breach; a resulting injury; and damages. In some states, like New York, the law sets a limit on the amount of money that can be awarded for a malpractice claim.
Causation
The injury element is known as the causation. It is one of 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 due to the negligence of the doctor. This is a difficult task for a number of reasons.
For instance, many of the injuries that are the subject of a medical malpractice lawsuit stem from long-term or ongoing ailments that were present prior to treatment. Often the statute of limitations for a claim involving medical malpractice extends over a variety of years and the injuries can develop gradually.
In these situations it is often difficult to prove that a certain medical professional's failure to adhere to the standard of care led to the injury. However, the patient who is afflicted may be able to use 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 lawyer can request the lawyers representing the defendants disclose expert testimony and other documents. The doctor who is defending the case will be required to take a deposition. This is a testimony which is under the oath. Your lawyer is able to cross-examine doctor and challenge their conclusions. The jury will then decide if the plaintiff has proved the necessary elements of their case, including duty, breach, causation and injury.
Negligence
The plaintiff must convince jurors, in a case of medical malpractice, that it is likely that the doctor violated his or her obligations as a physician and that those breaches resulted in injury. The lawyer representing the plaintiff must demonstrate this by presenting evidence through pretrial discovery, which includes the disclosure of documents, including medical records from all parties who are involved in the lawsuit. This also includes the recording of sworn statements and used in trial.
A doctor violated his or her professional obligations when he/she did something that a reasonable prudent doctor would not do 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. Patients may go to the hospital to have a hernia repaired, but instead end up having their gall bladder removed. This is medical malpractice since the removal of the gall bladder did not benefit the patient.
Medical malpractice lawsuits must be brought within a legally-defined period of time, also known as the statute of limitations which is different for each state. The injured patient has to prove that the substandard treatment caused injury, then they must prove what monetary compensation they are entitled to.
Damages
If medical negligence has caused you to suffer a traumatic injury, you have the right to be compensated. Scaffidi & Associates can help you receive fair and full 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 participate in discovery, a process in which documents and declarations are made public under the oath. During discovery, medical records and doctor's notes are typically requested.
In many states, to get compensation for injuries caused through malpractice, you need to prove four things including a duty of good faith owed by the healthcare provider, a breach of this duty; a causal link between the breach and injury; and damages resultant from the injury. If your attorney can prove all these aspects of a medical negligence claim, you'll have a strong case.
In some instances courts may decide to award punitive damages. These are designed to punish the wrongdoer and deter others from engaging in similar misconduct. But, this isn't often the case in
medical malpractice attorney malpractice cases since courts require precise proof of malice before they can award these awe-inspiring awards.