How to File a Medical Malpractice Case

A patient who discovers a foreign object such as surgical clamps within her body following gall bladder surgery is able to make a claim for medical malpractice. A successful claim must establish the legal elements of medical negligence: duty, deviance from this obligation, direct cause and injury.

Our clients must establish a direct link between the breach of duty, and the injury. This is referred to as the proximate reason.

Causes of Injury

A claim for medical malpractice can be filed either by the injured person or an attorney. This can be the spouse, adult child or parent, guardian or administrator of the estate of a deceased patient depending on the specific circumstances. In a medical malpractice case, the defendant is the health care provider. It could be an accredited nurse, doctor or therapist.

Malpractice cases usually require a lot of expert testimony. Medical experts are required to testify whether or not the health care provider followed the standard of care for their particular field. They must also testify to the harm resulting from the doctor’s actions or inactions.

Injuries that result from malpractice or negligence can be quite severe. For example, a mistake in the diagnosis of a health issue could have life-threatening consequences. Other kinds of injuries include performing surgery on the wrong body part or leaving instruments inside the patient during surgery.

The patient must establish four legal elements in a malpractice claim which include a duty to the patient by the physician; a breach of this obligation; a harm caused by the breach; and the consequential damages. In some states, such as New York, the law restricts the amount that can be awarded in a malpractice claim.

Causation

The injury element, also known as causation is one of the most important aspects of medical malpractice cases. To prove causation, the plaintiff must demonstrate that their injury was caused by the physician's negligence. This is a challenging job due to various reasons.

Many of the injuries that form the basis of medical negligence lawsuits result from long-term conditions or ongoing conditions that existed prior to when treatment started. The time period for filing medical malpractice cases can be extended over a period of time and injuries can develop slowly.

In these instances it is difficult to prove that a medical professional's failure to adhere to the standard of care which led to the injury can be difficult. The attorney could have gathered evidence, including medical records and expert testimony which the injured patient could use.

During the discovery process, which is part of the legal procedure preparing for trial, your lawyer can request the disclosure of expert testimony and other documents from lawyers representing the defendants. The doctor defending the lawsuit is then required to testify in deposition, which is the testimony under oath. Your lawyer will be able to challenge the doctor's findings and cross-examine them. The jury will then decide whether the plaintiff has proven the essential elements of their case including obligation, breach, causation and injury.

Negligence

When a medical negligence claim is filed the plaintiff must to convince the jury that it was more likely than not that the physician violated professional duties and those violations caused harm. The plaintiff's attorney must prove this by using evidence gathered during discovery. This involves seeking documents, such as medical records, from all parties involved in the lawsuit. This also includes sworn declarations that are recorded and used at trial.

A doctor violated his or her professional obligation when he or she did something that a reasonable prudent doctor would not do under similar circumstances. However it must be proven that the breach directly caused the injury to the patient. This is known as causation or proximate cause. A patient could visit the hospital to repair a hernia, but instead end up having their gall bladder removed. This is medical negligence because the removal was not beneficial for the patient.

Medical malpractice lawsuits must be filed within a legally prescribed period of time, also known as the statute of limitations, which varies according to the state. The injured patient has to show that the inadequate treatment caused injury, and then they have to prove the amount of compensation they're entitled to.

Damages

You should be compensated for any injuries you have suffered due to medical negligence. At Scaffidi & Associates, we can assist you to receive the full and fair compensation you deserve for your losses.

The first step is to file and serve a summons and complaint to all named defendants in the lawsuit. The parties then begin discovery, a process by which documents and declarations are made public under an oath. Medical records and notes of the doctor are typically sought during discovery.

In most states, in order to be eligible for compensation for injuries incurred by malpractice, you have to prove four things including a duty of good faith that is due to the healthcare provider and a breach of that duty; a causal link between the breach and injury; and damages that result from the injury. If your lawyer can demonstrate all of these elements in a medical negligence claim, you will have an impressive case.

In some instances courts may make punitive damages available, which are intended to penalize the offender and deter others from engaging in similar misconduct. This is not the norm however, in medical malpractice cases. The courts must be able to prove evidence of malice before they are able to give these extraordinary damages.