It s Time To Upgrade Your Medical Malpractice Settlement Options

How to File a Medical Malpractice Case

A patient who discovers that an object that is foreign like surgical clamps, remains inside her body after gall bladder surgery can 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.

It is crucial for our clients to establish a direct link between the breach of duty and the harm called proximate causation.

Cause of Injury

A medical negligence case may be filed by the injured patient or a person who is legally authorized to represent them. Based on the circumstances, it 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 patient who died. In a medical negligence case 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 determine if the healthcare provider did what was required of care in his or her particular field of expertise. They must also testify regarding the injury caused by the doctor's actions or inactions.

The consequences of negligence and malpractice can be severe. A misdiagnosis could have grave consequences, like an illness that could be life-threatening. Other kinds of injuries include operating on the wrong body part or leaving instruments inside the patient during surgery.

To establish a malpractice case the patient has to prove four legal elements: a duty the physician owed to them; a breach of this duty; a resultant injury and damages. In some states such as New York the law limits the amount of money awarded in a case of malpractice.

Causation

The injury element, also known as causation is one of the most important aspects of medical malpractice cases. To establish causation the plaintiff must prove that the injury was the result of the doctor's negligence. This can be a difficult task due to a variety reasons.

For instance, a lot of injuries that are the subject of a medical-malpractice lawsuit arise from long-term or ongoing conditions that were already present prior to the time of treatment. Often the statute of limitation for a medical malpractice lawsuit extends out over a number of years, and injuries may develop slowly.

In these instances it can be difficult to prove that one particular medical professional's failure to adhere to the standards of care caused the injury. However, the patient who is afflicted may be able to use evidence collected by the attorney, such as medical records and expert testimony.

During the discovery process, which is an integral part of the legal procedure preparing for trial, your lawyer may request the disclosure of expert testimony and other evidence from lawyers of the defendants. The doctor defending the lawsuit is then required to testify in a deposition, which is testimony that is under oath. Your lawyer will be able to cross-examine doctor and challenge the doctor's findings. The jury will decide if the plaintiff has proven that the allegations of the case are true including breach of duty, breach of contract and causation.

Negligence

The plaintiff must convince jurors, when filing a claim for medical malpractice that it is likely that the doctor violated his or her duties as a doctor and that these mistakes led to injuries. The plaintiff's lawyer must show this through 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 sworn declarations that are recorded and used in trial.

A doctor was in breach of his or her professional duty in the event that he or her did something that a reasonably prudent doctor would not do under similar circumstances. It must be established that the breach caused the injury directly to the patient. This is known as causation or the proximate cause. A patient could go to the hospital to repair a hernia, and instead, have their gall bladder removed. This is medical negligence since the removal did not benefit the patient.

Medical malpractice lawsuits must be filed within a legally defined period of time, referred to as the statute of limitations, which is different for each state. The injured patient must establish that the negligent care caused injury, and then he or she must demonstrate the amount of compensation he or she deserves.

Damages

You are entitled to compensation for any injuries you've suffered as a result of medical negligence. At Scaffidi & Associates, we can assist you in obtaining the full and fair compensation for your loss.

The first step is to file and serve the complaint and summons to all defendants named in the lawsuit. The parties engage in discovery. This is a procedure which involves the disclosure of documents and statements revealed under an oath. During discovery medical records and notes from a doctor are typically requested.

In most states, you have to prove four things to be compensated for injuries incurred by medical malpractice: a duty owed by the healthcare provider; a breach of that duty; a causal link between the breach and the injury suffered by the patient and damages resulting from the injury. If your attorney can demonstrate all of these elements in a medical malpractice claim, you will have a strong case.

In some instances, the court may award punitive damage which is intended to penalize a wrongdoer and deter others from engaging in similar crimes. It is not common however, particularly in medical malpractice cases. The courts must have clear evidence of malice before they are able to decide to award these extraordinary damages.