The Reason Why Medical Malpractice Settlement Is More Risky Than You Thought

How to File a Medical Malpractice Case

A patient who discovers an object foreign to her body, such as surgical clamps in her body following gall bladder surgery could make a claim for medical negligence. A successful claim must prove the elements of medical negligence: duty, deviation from this duty and direct reason.

It is vital for our clients to establish a direct causal connection between the breach of duty and the resulting injury, known as proximate causation.

Causes of Injury

A medical malpractice lawsuit can be filed by the injured patient or a legal person to act on their behalf. This could be a spouse, adult child parent, guardian, or administrator of the estate of a deceased patient depending on the circumstances. In a medical malpractice case the defendant is the health care provider. This could be an accredited doctor, nurse or therapist.

Malpractice cases typically involve a lot of expert testimony. Medical experts must be able to prove whether or the medical professional adhered to the standards of care for their particular field. They also have to testify to the damage caused by the actions or inactions of a doctor.

The consequences of malpractice and negligence can be extremely serious. For instance, a misdiagnosis of a health condition can have life-threatening effects. Other types of injuries can include operating on the incorrect body part or leaving surgical instruments inside the patient.

The patient must prove four legal elements of a malpractice claim the duty owed to the patient by the physician and a breach of that duty; an injury caused by the breach and the consequential damages. In some states such as New York the law limits the amount of money that can be awarded in a malpractice case.

Causation

The injury element, also referred to as causation is one of the most important elements of medical malpractice cases. To prove causation, the plaintiff must prove that they suffered their injury on the balance of probabilities because of the negligence of the doctor. This can be a difficult task for several reasons.

For instance, many of the injuries that are the subject of a medical malpractice lawsuit stem from long-term or ongoing conditions that were present prior to treatment. Often the statute of limitations for a medical malpractice lawsuit extends over a variety of years, and injuries may develop slowly.

In these cases the proof that a medical professional's breach of the standard of care and led to the injury is difficult. However, the patient who is afflicted could be able to use evidence collected by the attorney, like medical documents and expert testimony.

During the process of discovery, which is a part of the legal process for the preparation of a trial your attorney can request that the lawyers for the defendants be made aware of expert testimony and other documents. The doctor defending the lawsuit will then be called to testify during deposition, which is testimony that is under an oath. Your lawyer can challenge doctor's findings and cross-examine them. The jury will decide whether the plaintiff has proved the facts of the case including breach of duty and causation.

Negligence

If a claim for medical malpractice is filed the plaintiff has to convince the jury that it was more likely than not that the doctor breached his or her professional duties and those breaches resulted in injury. The plaintiff's lawyer has to demonstrate this with evidence gathered through pretrial discovery, which includes requesting disclosure of documents including medical records from all parties involved in the lawsuit. This process also involves swearing statements that are recorded and used in trial.

A doctor breached his or her professional obligations if 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 injury to the patient. This is known as causation or proximate causes. For example when a patient is taken to the hospital for a procedure to treat a hernia and ends up having his or his gall bladder removed instead. This is medical malpractice as the removal of the gall bladder 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 varies by state. The patient who was injured must demonstrate that the treatment was substandard and caused injury, and then they must prove what monetary compensation they are entitled to.

Damages

You should be compensated for any injuries 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 engage in discovery. This is a procedure where documents and statements are made public under an oath. During discovery medical records and notes from a doctor will typically be sought.

In many states, to receive compensation for injuries caused through malpractice, you need to prove four things that include a duty of care that is due to the healthcare provider and a breach of that duty; a causal link between the breach and injury; and damages resulting from the injury. If your attorney can establish all of these elements, you have a strong case for financial recovery in a medical negligence claim.

In some cases, a court may give punitive damages, which are intended to punish the culprit and deter others from engaging in the same conduct. However, this is not the norm in medical malpractice cases as the courts require extremely precise proof of malice before they can give these extraordinary awards.