How to File a Medical Malpractice Case A patient who discovers a foreign object such as surgical clamps in her body after gall bladder surgery could 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 important for our clients to establish a direct link between the breach of duty and the damage which is referred to as proximate cause. Causes of Injury A medical malpractice lawsuit can be filed either by the person who was injured or an attorney. Based on the specific circumstances, this could be the spouse of the patient, an adult child or parent, a guardian ad litem or the administrator or executor of the estate of the patient who died. In a case involving medical malpractice the defendant is the health care provider. This could be a nurse, doctor, therapist or any other licensed health care professional. The majority of cases involving malpractice involve a lot of expert testimony. Medical experts must provide evidence to prove that the healthcare provider acted within the standard of medical care within their specific field of expertise. They must also testify about injuries caused by doctor's actions or inactions. The consequences of negligence and negligence can be very serious. A misdiagnosis can have serious consequences, like an illness that could be life-threatening. Other kinds of injuries include operating on the incorrect body part or putting surgical instruments in the patient. The patient must prove four legal elements in a malpractice case that include a duty owed to the patient by the physician; a breach of this obligation; a harm caused by the breach; and resulting damages. In certain states like New York the law limits the amount of money awarded in a malpractice case. Causation The injury element, also known as causation is one of the most important elements in medical malpractice cases. To establish causation the plaintiff must prove that their injury was caused by a physician's negligence. This is a difficult job due to a variety of reasons. A lot of the injuries that form the basis of medical negligence lawsuits result from long-term illnesses or conditions which were present before treatment started. Often the statute of limitation for a medical malpractice lawsuit extends over a number of years, and the injuries may develop slowly. In these instances the proof that a medical professional's failure to adhere to the standard of care that led to the injury can be difficult. The attorney may have collected evidence, like expert testimony and medical records, that the injured patient could use. During the discovery process, which is a component of the legal procedure for preparation for trial, your lawyer could seek disclosure of expert testimony and other evidence from lawyers of the defendants. The doctor defending the lawsuit is then asked to testify during a deposition, which is testimony under the oath. Your lawyer may challenge the doctor's findings and cross-examine them. The jury will decide then if the plaintiff has proven the essential elements of their claim, which includes breach of duty, causation, breach of duty and injury. Negligence The plaintiff must convince the jury, when bringing a claim for medical malpractice that it is more than likely that the physician violated the obligations of physician and that the mistakes led to injuries. The lawyer representing the plaintiff must demonstrate this by presenting evidence through pretrial discovery, which includes asking for disclosure of documents such as medical records from all parties who are involved in the lawsuit. Depositions, wherein statements are made under oath and recorded for use at trial, are also part of this process. A doctor has breached their professional duty in the event that they did something a reasonable and prudent doctor would not have done in similar circumstances. However it must be proved that the breach directly caused injury to the patient. This is referred to as causation, or the proximate cause. A patient might go to the hospital to repair a hernia, and instead, have their gall bladder removed. This is medical negligence because the removal did not benefit the patient. Medical malpractice lawsuits must be brought within a legally prescribed period of time, referred to as the statute of limitations which varies by state. The victim must prove that the negligence resulted in injury, and then prove how much monetary compensation he or she is entitled to. Damages You deserve to be compensated for any injuries that you've suffered as a result of medical negligence. Scaffidi & Associates can help you get fair and complete compensation for your losses. The first step is filing and serving a complaint and summons on all named defendants in the lawsuit. The parties then participate in discovery, in which documents and statements are revealed under oath. Medical records and notes of the doctor are typically sought during discovery. In most states, in order to receive compensation for injuries caused by malpractice, you need to establish four elements such as a duty of care that is due to the healthcare provider, a breach of this obligation; a causal connection between the breach and injury; and damages resultant from the injury. If your lawyer can prove all of these elements, you will have an argument for financial compensation in a medical malpractice case. In some cases courts may give punitive damages, which are designed to punish the offender and deter others from engaging in similar misconduct. However, this isn't the norm in medical malpractice cases, as courts require precise proof of malice before they can give these extraordinary awards.