Medical Malpractice Lawsuits

Attorneys hold a fiduciary relationship with their clients and are expected to behave with care, diligence and skill. But, as with all professionals, attorneys make mistakes.

Some errors made by attorneys are a result of malpractice. To prove negligence in a legal sense the victim must demonstrate the breach of duty, obligation, causation, and damage. Let's review each of these aspects.

Duty-Free

Doctors and other medical professionals swear to use their education and expertise to treat patients and not cause harm to others. A patient's legal right to compensation for injuries sustained from medical malpractice is based on the notion of the duty of care. Your attorney can determine if the actions of your doctor breached the duty of care and if those breaches caused injury or illness.

Your lawyer must establish that the medical professional was bound by the duty of a fiduciary to perform with reasonable competence and care. This relationship may be proven through eyewitness testimony, doctor-patient documents and expert testimony from doctors who have similar educational, experience and training.

Your lawyer will also need to demonstrate that the medical professional violated their duty to care by failing to follow the accepted standards in their area of expertise. This is often called negligence, and your attorney will compare the defendant's behavior to what a reasonable individual would do in the same circumstance.

In addition, your lawyer must show that the defendant's breach of duty directly resulted in injury or loss to you. This is called causation. Your lawyer will rely on evidence, such as your doctor/patient reports, witness testimony and expert testimony, to demonstrate that the defendant's failure to adhere to the standard of care was the sole cause of injury or loss to you.

Breach

A doctor is required to perform a duty of care to his patients that corresponds to professional medical standards. If a doctor fails adhere to these standards and the failure results in injury, then medical malpractice or negligence could occur. Typically, expert testimony from medical professionals with similar training, skills or certifications will assist in determining what the minimum standard of medical care should be in a particular case. Federal and state laws and institute policies also determine what doctors should do for specific types of patients.

In order to win a malpractice claim, it must be shown that the doctor violated his or his duty of care and that this breach was the direct cause of injury. This is referred to in legal terms as the causation element, and it is imperative that it be established. For instance an injured arm requires an xray the doctor must properly fix the arm and place it in a cast to ensure proper healing. If the doctor fails to do this and the patient loses their usage of the arm, malpractice could have occurred.

Causation

Lawyer malpractice claims are built on the basis of evidence that the attorney committed errors that resulted in financial losses for the client. For instance the lawyer fails to file a lawsuit within the prescribed time of limitations, resulting in the case being lost forever and the victim could bring legal malpractice lawsuits.

It is important to understand that not all mistakes by lawyers are considered to be malpractice. Strategies and planning mistakes are not typically considered to be malpractice. Attorneys have a broad decision-making discretion to make decisions as long as they're rational.

In addition, the law allows attorneys considerable leeway to fail to conduct discovery on behalf of a client's behalf, as long as the action was not negligent or unreasonable. Inability to find important facts or documents like medical or witness statements or medical reports, could be an instance of legal malpractice lawyers. Other examples of malpractice are a inability to include certain claims or defendants for example, like forgetting to include a survival count in a wrongful-death case or the consistent and long-running failure to contact clients.

It is also important to remember the fact that the plaintiff needs to demonstrate that, if it weren't the lawyer's negligence they could have won their case. The plaintiff's claim of malpractice is rejected in the event that it is not proved. This requirement makes the process of bringing legal malpractice lawsuits difficult. For this reason, it's important to choose a seasoned attorney to represent you.

Damages

In order to prevail in a legal malpractice lawsuit, the plaintiff must prove actual financial losses incurred by the actions of the attorney. This should be proved in a lawsuit with evidence like expert testimony, correspondence between the client and attorney, billing records and other evidence. In addition the plaintiff has to prove that a reasonable lawyer would have avoided the harm that was caused by the negligence of the attorney. This is known as proximate causation.

The definition of malpractice can be found in a variety of ways. The most frequent mistakes are: failing to meet the deadline or statute of limitations; failing to perform the necessary conflict checks on cases; applying law in a way that is not appropriate to the client's particular situation; and breaking an obligation of fiduciary (i.e. mixing trust funds with attorney's personal accounts) or a mishandling of the case, or not communicating with the client.

Medical malpractice suits typically involve claims for compensation damages. These damages compensate the victim for out-of pocket expenses and losses such as hospital and medical bills, the cost of equipment to help recover and lost wages. In addition, the victims can seek non-economic damages, like pain and suffering, loss of enjoyment of life, and emotional distress.

In many legal malpractice cases there are lawsuits for punitive as well as compensatory damages. The former compensates victims for losses caused by the negligence of the attorney and the latter is intended to deter future malpractice on the part of the defendant.