How to File a Medical Malpractice Case
A malpractice case is one in which a medical professional fails to treat a patient in accordance to accepted standards of care. Medical malpractice can be caused by an orthopedic surgeon who makes a mistake in surgery and damages nerves in the femoral region.
Duty of care
The doctor-patient relationship creates the obligation of care all medical professionals have to fulfill in their job. The job requires taking reasonable steps to prevent injuries and to treat or alleviate a patient's illness. The doctor must also inform the patient of the potential dangers associated with treatment or a procedure. If a doctor fails to warn patients about the risks associated with their profession could be held liable for negligence.
Medical professionals who fail to fulfill their duty of care is liable for negligence, and is required to pay damages to a plaintiff. To prove this element of the case, it must be demonstrated that the defendant's actions or lack of action did not meet the standards of care that other medical professionals would have acted in similar circumstances. This is usually proven through expert testimony.
A medical expert who is knowledgeable about the practice relevant to the case and the kinds of tests that must be performed to determine the severity of a particular illness can be able to prove that the defendant's actions violated the standard of treatment for that particular illness or condition. They can also explain in simple terms to a juror the reason the standard was violated.
There are a few medical experts who are competent to handle malpractice cases, therefore an experienced attorney should know how to locate and work with the appropriate expert witnesses. In complex cases, it may be necessary for the expert to provide specific reports and be present to give evidence in court.
Breach of duty
Defining the standard of care and proving that the medical professional breached it is the premise of all malpractice cases. This is typically done by getting expert evidence from doctors with similar training, skills and knowledge as the alleged negligent physician.
The basic principle of care is what other medical professionals would do in similar situation to treat you. Doctors have a duty to their patients to treat them with caution and in a fair manner. The duty of care also extends to the loved relatives of their patients. This doesn't mean that medical professionals have a duty to act as good samaritans out of the hospital.
If a medical professional violates their duty of care and you're injured, they are liable for the injuries you sustain. The plaintiff must also establish that the breach directly caused the injury. If, for instance, the defendant surgeon misreads the chart of their patient and operates on the incorrect leg, causing injury, this is most likely negligence.
It may be difficult to establish the reason for your injury. For example when the surgical sponge was left behind after a gallbladder operation, it can be hard to demonstrate that the patient's issues were directly caused by the procedure.
Causation
A doctor can only be held accountable for malpractice if the patient is able to prove that the physician's negligence caused the injury. This is called "cause". It is important to note that a negative outcome from a treatment is not necessarily medical
malpractice lawsuit. The plaintiff must prove that the doctor's actions were not in line with the standard of care in similar cases.
A doctor has a responsibility to inform a patient about all possible risks and outcomes, including the success rate of the procedure. If a patient hasn't been adequately informed about the risks, they could have opted out of the procedure and opt for an alternative. This is known as the obligation of informed consent.
The legal system's structure for handling medical malpractice cases grew out of the 19th century English common law, and is regulated by court decisions and legislative statutes which differ between states.
To be able to sue a doctor, one must file an official complaint or summons in a state's court. The document outlines the alleged wrongs and demands compensation for the harms caused by the physician's actions. The plaintiff's lawyer must schedule the deposition under oath by the doctor who is defendant that gives the plaintiff an opportunity to give testimony. The deposition is usually recorded and used as evidence during the trial of the case.
Damages
A patient who believes that a doctor has acted negligently in medical treatment can file a lawsuit in the court. A plaintiff must demonstrate four elements to support a claim of malpractice: a legal obligation to perform the duties of practice in 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 expert testimony. The defendant's lawyer will often be involved in discovery, where the parties request written interrogatories as well as requests for documents. These are queries and requests for tangible evidence, which the opposing party has to answer under oath. This can be a lengthy and drawn-out procedure and both sides will have experts provide testimony.
The plaintiff should also demonstrate that the negligence resulted in significant damages. This is because it can be expensive to pursue a malpractice case. If the damages are small then it might not be worth the effort to start an action. Additionally, the amount of the damages must exceed the cost of filing the suit. It is imperative that a patient consults a Board Certified legal
malpractice lawyer prior to filing a lawsuit. After a trial has concluded, either the losing or winning party can appeal the decision of a lower court. In the event of an appeal the higher judge will review the case to determine whether the lower court committed mistakes in the law or facts.