How to File a Medical Malpractice Case A patient who discovers an object foreign to her body, such as surgical clamps inside her body after gall bladder surgery may bring a lawsuit against a doctor for medical malpractice. A successful claim has to prove the elements of medical malpractice: duty, deviance from this duty and the direct reason. Our clients must establish a direct connection between the breach of duty and the injury. This is referred to as the proximate reason. The reason for injury A medical malpractice lawsuit can be filed by the person who has been injured or a legal person to act on their behalf. Depending on the circumstances it could be the spouse of the patient, an adult child or parent, guardian ad litem or the executor or administrator of the estate of the patient who died. The defendant in a medical malpractice lawsuit is the health professional. It could be a licensed nurse, doctor or therapist. Expert testimony is usually required in malpractice cases. Medical experts are required to testify whether or the medical professional was in compliance with the standard of care in their specific field. They must also testify as to the damage caused by the actions or inactions of a doctor. The injuries that result from malpractice and negligence can be quite severe. A misdiagnosis could have grave consequences, including the possibility of a life-threatening illness. 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 of a malpractice lawsuit which include a duty to the patient by the physician and a breach of this duty; an injury caused by the breach and resulting damages. In some states such as New York the law limits the amount of money that can be awarded for a malpractice case. Causation The injury element is called the causation. It is one of the most crucial elements in a medical malpractice claim. To prove causation the plaintiff must prove that they suffered their injury on the balance of probabilities because of the negligence of a physician. This is a challenging job due to various reasons. Many injuries that are the basis for medical negligence lawsuits result from long-term conditions or ongoing issues that existed before treatment started. The statute of limitations on a medical malpractice case can be extended for a number of years, and injuries can develop slowly. In these cases it can be difficult to prove that a certain medical professional's breach of standard of care led to the injury. However, the patient who was hurt could be able to use evidence collected by the attorney, like medical records and expert testimony. During the discovery process, which is part of the legal process for preparation for trial, your lawyer can request the disclosure of expert testimony as well as other documents from defendants' attorneys. The doctor who is representing the case will be required to testify in deposition. This is a statement which is under the oath. Your lawyer will be able to challenge the doctor's findings and cross-examine them. The jury will then decide if the plaintiff has proved the essential elements of their case such as breach of duty, causation, breach of duty and injury. Negligence The plaintiff must convince the jury when bringing a lawsuit for medical malpractice, that it is likely that the doctor violated the obligations of a doctor and that these mistakes led to injuries. The plaintiff's lawyer must demonstrate this with evidence gathered through pre-trial discovery, which involves seeking disclosure of documents, which includes medical records from all parties who are involved in the lawsuit. This process also includes sworn statements that are recorded and used at trial. A doctor has violated his or her professional obligation when he or she did something that a reasonable prudent physician would not do in the same circumstances. It must be proved that the breach resulted in injury directly to the patient. This is referred to as causation or proximate causes. Patients may go to the hospital in order to repair a hernia, but end up having their gall bladder removed. This is medical malpractice because the removal of the gall bladder was not beneficial to the patient. Medical malpractice lawsuits must be filed within a legally regulated period of time, referred to as the statute of limitations which is different for each state. The injured patient must establish that the substandard care resulted in injury, and then prove how much monetary compensation he or she is entitled to. Damages If a medical error has caused you to suffer an injury, you deserve to be made whole. At Scaffidi & Associates, we can assist you in obtaining the full and fair compensation you deserve for your loss. The first step is to file and serve a summons and complaint to all named defendants in the lawsuit. The parties engage in discovery. This is in which documents and declarations are made public under oath. During discovery, medical records and doctor's notes are usually requested. In the majority of states, to be eligible for compensation for injuries incurred by negligence, you must to establish four elements such as a duty of care that the healthcare provider is obligated to perform, a breach of this duty; a causal link between the breach and injury and damages that result from the injury. If your lawyer can prove all of these elements, you have an extremely strong case for financial compensation in a medical malpractice case. In certain instances the court could give punitive damages that is designed to penalize a wrongdoer and discourage others from committing similar misconduct. This is rare, however, in medical malpractice cases. The courts must have a clear evidence of malice before they are able to decide to award these extraordinary damages.