How to File a Medical Malpractice Case A patient who discovers an object foreign to her like surgical clamps, remains inside her body following gall bladder surgery may bring a medical malpractice lawsuit. A successful claim must establish the legal elements of medical negligence: duty, deviation from this duty, direct cause, and injury. It is essential for our clients to establish a direct connection between the breach of duty and the harm that is known as proximate causation. Cause of Injury A medical malpractice claim may be filed either by the victim or an attorney. Based on the specific circumstances, this could be the spouse of the patient or an adult child parent, guardian ad Litem or the administrator or executor of the estate of the patient who died. The plaintiff in a medical malpractice lawsuit is the health care provider. This could be an accredited doctor, nurse or therapist. Expert testimony is usually required in malpractice cases. Medical experts must determine if the medical professional did what was required of care in their special area of expertise. They also need to testify on injuries caused by physician's actions or actions or. The consequences of negligence and malpractice can be severe. A mistake in diagnosis can have devastating consequences, such as a life-threatening condition. Other types of injuries be caused by operating on an incorrect body part or putting surgical instruments in the patient. To establish a malpractice case the patient must demonstrate four legal elements: a duty that the doctor 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 that can be awarded in a malpractice case. Causation The injury element, also known as causation, is one of the most crucial elements in a medical malpractice case. To establish causation the plaintiff must demonstrate that their injury was the result of the doctor's negligence. This can be a difficult task due to a variety of reasons. For instance, many injuries that are the subject of a medical-malpractice lawsuit stem from long-term, or ongoing ailments that were present prior to the time of treatment. Often the statute of limitation for a medical negligence claim extends out over a number of years, and the injuries may develop slowly. In these instances it is often difficult to prove that a particular medical professional's violation of the standard of care caused the injury. The attorney may have collected evidence, such as expert testimony and medical records that the injured person can utilize. During the discovery process, which is part of the legal process for getting ready for trial, your lawyer could ask for the disclosure of expert testimony and other documents from the defense attorneys of the defendants. The doctor who is defending the case will be asked to testify in deposition. This is a statement that's given under oath. Your lawyer may challenge the doctor's findings and cross-examine them. The jury will decide then if the plaintiff has established the necessary elements of their case including the duty of care, breach, causation and injury. Negligence When a medical malpractice claim is filed in court, 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 violations caused injury. The plaintiff's lawyer must demonstrate this with evidence gathered through pre-trial discovery, which involves requesting disclosure of documents including medical records from all parties who are involved in the lawsuit. Depositions, in which the statements are made under oath, and recorded to be used at trial, are also a part of this process. A doctor has violated their professional duty if they did something reasonable and prudent doctors would not have done in similar circumstances. However it must be proven that the breach directly caused the injury to the patient. This is known as causation or proximate causes. For example the patient is admitted to the hospital for a hernia surgery and is then able to have his or his gall bladder removed instead. This is medical negligence as the procedure did not benefit the patient. Medical malpractice lawsuits must be brought within a legally prescribed period of time, called the statute of limitations, which is different for each state. The patient who was injured must prove that the negligent treatment caused injury, then they must prove what monetary compensation they're entitled to. Damages If a medical error has caused you to suffer an injury, you deserve to be compensated. At Scaffidi & Associates, we can help you receive the full and fair compensation you deserve for your losses. The first step in a lawsuit is to make a complaint and serve it along with summons and other papers on all defendants. The parties then proceed to discovery, a process by which documents and statements are made public under oath. During discovery medical records and notes from a doctor are typically requested. In most states, you must demonstrate four elements in order to be compensated for the injuries caused by medical malpractice such as a duty due to the healthcare provider in breach of that obligation; a causal connection between the breach and the patient's injury and damages resulting from the injury. If your attorney can establish all of these elements, you can make a an excellent case for financial recovery in a medical malpractice case. In certain instances, a court may make punitive damages available, 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, because the courts require clear evidence of malice to give these extraordinary awards.