How to File a Malpractice Lawsuit Against a Medical Professional - morgan and morgan
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How to File a Malpractice Lawsuit Against a Medical Professional

How to File a Malpractice Lawsuit Against a Medical Professional

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How to File a Malpractice Lawsuit Against a Medical Professional

A 2016 study released by Johns Hopkins patient safety experts suggests that more than 250,000 people die every year in the U.S. due to medical error, making it the third leading cause of death. The research further indicates that while these deaths aren't necessarily the result of bad doctors, the current system isn't holding doctors accountable for unwarranted variations in physician practice patterns, and the overall medical profession is plagued by poorly coordinated patient care.

A medical malpractice lawsuit may be warranted whenever a healthcare provider, doctor, nurse, or medical employee harms or injures a patient because they failed to provide the proper standard of care. Suppose you believe you or your loved one was harmed or injured while receiving care or treatment. In that case, you may be interested in how to file malpractice against the medical professional for their negligence. Below you will find out how to start a medical malpractice lawsuit and some factors to consider. 
 

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FAQ

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  • What is the legal basis for professional malpractice claims?

    Medical malpractice is defined as any act or failure to act by a physician which deviates from the standards and norms of practice for their profession. The result of which is harm or injury to the patient. Medical malpractice falls under tort law, a body of law that addresses civil wrongs and provides a legal pathway to seek compensation. To prove medical malpractice, the patient must show the healthcare professional acted negligently in providing care and their negligence resulted in the patient's injury. There are four legal elements that must be established to have a valid malpractice claim.

  • What are the four elements of medical malpractice?

    The four elements of medical malpractice are as follows:

    1. The medical professional owed the patient a duty of care.
    2. The medical professional breached that duty.
    3. Their breach of duty caused an injury to the patient.
    4. The injury resulted in compensable damages. 

    Duty of care: Whenever a health professional agrees to treat a patient, a legal duty of care is established, which means they must provide a reasonable level of care expected of their profession. The concept of duty of care is prevalent throughout our society, but when a physician starts treating a patient, they are expected to provide the basic standard of care any other reasonable physician would provide. When they deviate from that standard, they breach their legal duty. 

    Breach of professional duty: Breaching the duty of care generally means that the medical professional failed to provide the level of care that a similarly situated medical professional would have provided under similar circumstances. To prove a breach of professional duty, an expert witness is crucial in explaining the complexities of medical care to a jury. They explain in terms that any layperson would be able to understand. That is unless the breach of duty is blatantly obvious such as a surgical instrument being left inside a patient's body or the wrong limb being amputated. 

    Causation: The third element that must be proven is that the medical professional's negligence caused harm to the patient. For example, if a doctor misdiagnoses an ectopic pregnancy as gas pains, and the patient goes home and hemorrhages, there is a direct link between the doctor's negligence and the patient's injuries. 

    Damages: The final element is money damages which is a calculation of the compensation the patient is seeking. Damages can be hospital bills to correct the injury, further medication and treatment required, and emotional damages like mental anguish, suffering, and trauma. Without damages, a medical malpractice claim cannot be established even if the doctor’s care was substandard.   

  • How do I get a malpractice attorney to take my case?

    The process of taking legal action for medical malpractice is long and tedious. Most people experience great benefits from the help of an attorney. However, your attorney will want to make sure your claim has merit before taking it on. Some of the ways we evaluate a case are by interviewing you, looking at your medical records, and sharing your records with a medical expert in the same field as the one who caused your injuries. That way, they can identify if there were indeed negligent acts or negligent omissions in your care. 

    Some states require an Affidavit of Merit before proceeding with a medical malpractice lawsuit. This is a sworn statement from a medical expert that your case does have merit. Your lawyer will still need to believe your case is legally and medically valid regardless of state laws. 

  • What is the trial process?

    Once your attorney accepts your case, they will notify the medical professional in question. However, most everything will go through the defendant's lawyer and their insurance company. Many cases never make it all the way to trial because, like the majority of civil cases, they are settled out of court. Our legal system is designed in such a way to make self-resolution easier so that the courts are not over-burdened. 

    One of the legal tools that help facilitate self-resolution is the process of discovery which is one of the steps both parties partake in leading up to a trial. During discovery, both sides will share information by requesting documents from each other, interviewing relevant parties, and deposing the plaintiff and defendant. 

    The goal of discovery is to lay all the cards down, so each party understands what the other party holds and thus, make informed decisions based upon the facts and evidence of the case. Usually, this will result in a settlement being reached. 

    If a settlement fails to materialize, all of the evidence compiled during discovery will be used at trial. During the trial phase, the plaintiff has the burden of proving every element of medical malpractice outlined earlier in this article. Your attorney must prove the medical professional was more likely than not negligent in your care, which is a lower standard than "beyond a reasonable doubt." Beyond a reasonable doubt is the legal standard of proving a criminal case. 

    When both the plaintiff and defendant have presented their case, the judge or jury will decide if the defendant has a 50% or greater probability of professional negligence and award damages based upon their verdict. 

  • What are the most common medical malpractice claims?

    With the shocking revelations from the Johns Hopkins study, it's no wonder why medical malpractice claims are rising in the U.S. Every year, about 20,000 people will file a lawsuit against a medical professional for medical malpractice. Here are the most common causes:

    Misdiagnosis/delayed diagnosis - Since healthcare is so fragmented now, it's more difficult for doctors to have a complete picture of a patient's health which can lead to misdiagnoses. The doctor may be inexperienced or overconfident, both of which can lead to patient harm. Since health care has become more like a business than a calling, many doctors only spend about 15 minutes with a patient. Such a brief amount of time is rarely enough to evaluate symptoms properly. Instead, the patient is sent to a specialist who further complicates matters since the specialists will be looking for signs that are relevant to their field. By the time the accurate diagnosis is found, the patient may have suffered irreparable harm. 

    Failure to treat - When a doctor fails to treat a patient with a medical condition, the patient's health may deteriorate or may even cause death. A doctor can fail a patient if they don't order tests, treat conditions in a timely manner, fail to treat because of insurance or let the patient know about the available treatments for their condition. 

    Medication errors - A medication error can result in an overdose, complications with other medications, and delayed treatment. Medication errors can happen because of the wrong dosage, wrong medicine, failure to research drug allergies, past prescription drug use, and failure to warn the patient of the drug's risks and side effects.

    Surgical or procedural errors - Surgeons need to have the proper training to perform their delicate work. Suppose a surgeon is overly confident in their skills and performs a surgery in which they are not qualified. In that case, the results can be disastrous for the patient. Furthermore, lack of communication and insufficient staffing can lead to patient harm if an anesthesiologist isn't made aware of the patient's drug allergies, or the nursing staff is overwhelmed and doesn't check on a patient after surgery.

    Childbirth injuries - A childbirth injury can occur at any time during gestation or birth if a doctor or nurse fails to provide adequate prenatal care, fails to recognize fetal distress, or doesn't perform a C-section when it's apparent that one is necessary. 
     

  • How our medical malpractice lawyers can help you

    When you learn how to file malpractice against medical professionals, you can see that it's not a cut and dry process. It's actually quite complicated and can be exhausting and overwhelming to take on by yourself. One of our seasoned medical malpractice lawyers can take on the bulk of the burden and work to protect your rights and gain a favorable settlement. 

    Our law firm was established with the belief that every person has a right to seek compensation when they've suffered harm through someone else's negligence. It's no different when an injury is caused by a doctor, health provider, hospital, nurse, or medical staff. Even when influential lawyers represent the negligent party, we want you to understand you will have an equally powerful legal team working for you. 

    Morgan & Morgan is one of the largest and most successful law firms in the U.S., but we're still a family-owned business. We believe there is nothing more important than family and are proud to represent individuals from all walks of life. You don't have to worry about payment upfront when we accept your case. That's because we work on a contingency fee basis, meaning we don't get paid unless you do. Because we want what's best for you, we work hard to make sure you get every bit of compensation that's coming to you, even if it takes a long time and requires a lot of our resources. 

    It's important to make sure you’re aware that you have a limited amount of time to take action in a civil case, so it's best to get in contact with us today. We offer a free case evaluation and can give you the advice and guidance you need during this difficult time. You and your family deserve justice, and that's what we intend to deliver. 

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