How to File a Medical Malpractice Case
A malpractice situation is one where a medical professional fails to treat a patient in line with accepted standards of care. For instance when an orthopedic surgeon is negligent during surgery that causes damage to the nerves of the femoral area, this could be considered medical negligence.
Duty of care
The doctor-patient relationship has an obligation of care that every medical professional must fulfill in their work. This includes taking reasonable precautions to avoid injury or treat a patient's condition. The doctor must inform the patient of any risks associated with a treatment or procedure. If a doctor fails to warn the patient about risks known to the profession may be held accountable for negligence.
If a medical professional fails to meet their duty of care, they are accountable for negligence and must compensate damages to the plaintiff. This aspect of the case must be established by proving that the defendant's actions, or lack thereof, fell short of the standard of the way other medical professionals perform in similar situations. This is usually established by expert testimony.
A medical professional with experience in the relevant practices and the kinds of tests that must be performed to diagnose a specific illness can testify the defendant's actions were against the standard of care. They can also explain to the jury in simple terms what the standard of care was violated.
Some medical experts are not qualified to handle the malpractice cases, therefore a good attorney should be able to locate and work with the right expert witnesses. In complex cases experts may be required to provide detailed reports and be present to testify in court.
Breach of duty
All malpractice cases are built on defining the standard of care, and then proving that the medical professional did not adhere to the standard. This is usually done with expert testimony from other doctors with similar skills, knowledge and experience as the negligent doctor.
In essence, the standard of care is what other medical professionals would do in similar circumstances to treat you. Doctors owe their patients a duty of care to behave prudently and with the utmost care when treating a patient. The duty of care extends to the loved families of their patients. However, this does not mean that medical professionals have a duty to act as good Samaritans outside the hospital.
When the medical professional breaches their duty of care and you're injured, they are held accountable for your injuries. In addition the plaintiff must show that their injury was directly caused by the breach. For instance, if the surgeon in the defendant's chart and then operates on the wrong leg, causing an injury, it's likely negligence.
It is important to keep in mind that it could be difficult to determine the root source of your injury. For instance in the instance where the surgical sponge was left behind after gallbladder surgery, it is difficult to prove that the patient's complications were directly related to the procedure.
Causation
A doctor is only accountable for negligence if a patient is able to demonstrate that the doctor's carelessness caused the injury. This is referred to as "causation." It is important to keep in mind that a negative outcome resulting from a treatment does not necessarily constitute medical malpractice. The plaintiff must also demonstrate that the doctor deviated from the standard of care in similar cases.
It is the doctor's responsibility to inform the patient of the potential risks and results of a procedure, including the likelihood of success. If a patient isn't properly informed of dangers, they may decide to skip the procedure in favor of a different option. This is known as the obligation of informed consent.
The legal system's structure for handling medical malpractice claims evolved from the 19th century English common law, and it is regulated by court decisions and legislative statutes that differ between states.
In order to be able to sue a doctor, one must submit an official complaint, or summons in a court of the state. The document outlines the allegations of wrongdoing, and demands compensation for the harm caused by the actions of the physician. The attorney representing the plaintiff has to schedule a deposition of the defendant doctor under oath, which is an opportunity for the plaintiff to present evidence. The deposition will be recorded and used as evidence in the trial.
Damages
A patient who believes a doctor has committed medical malpractice can sue in the court. A plaintiff must establish four elements in order to have a valid claim of malpractice: a legal duty to follow the rules of the profession and a breach of the obligation; injury caused by the breach; and damages that are reasonable in relation to the injury.
Medical malpractice cases require experts testimony. The lawyer of the defendant will usually participate in discovery where parties seek written interrogatories, as well as documents. The opposing party has to answer these questions and requests under oath. This process could be a long and lengthy one, and lawyers for both sides will be able to present experts to give evidence.
The plaintiff must also prove that negligence has caused substantial damages. This is because it can be expensive to pursue a
malpractice lawsuit. If the damages are small or insignificant, it may not be worthwhile to start an action. The amount of damages should also exceed the cost to bring the lawsuit. For this reason, it is vital for patients to speak with an experienced Board Certified legal Malpractice attorney (
http://Lamerpension.co.kr/) prior to filing a lawsuit. When a trial is over either the winning or losing party may appeal the decision of a lower court. In the event of an appeal an appeal, a higher-level court will review the record to determine if the lower court made mistakes in law or fact.