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Medical Malpractice Lawsuits

Attorneys have a fiduciary connection with their clients and are expected to act with diligence, care and ability. Attorneys make mistakes just like any other professional.

Not every mistake made by an attorney constitutes legal malpractice. To prove negligence in a legal sense the victim must demonstrate the breach of duty, obligation, causation, as well as damage. Let's review each of these elements.

Duty

Doctors and other medical professionals swear by their training and experience to help patients and not cause further harm. Duty of care is the foundation for the right of a patient to be compensated in the event of injury due to medical negligence. Your attorney will determine if the actions of your doctor breached the duty of medical care and if those breaches resulted in injury or illness.

To establish a duty of care, your lawyer must to demonstrate that a medical professional had an legal relationship with you, in which they owed you a fiduciary responsibility to exercise an acceptable level of expertise and care. To prove that the relationship existed, you may require evidence such as the records of your doctor and patient or eyewitness testimony, as well as experts from doctors with similar knowledge, experience, and education.

Your lawyer will also have to prove that the medical professional violated their duty to care in not adhering to the accepted standards in their field. This is often called negligence. Your attorney will compare the defendant's behavior to what a reasonable individual would perform in the same situation.

Finally, your lawyer must demonstrate that the defendant's breach of duty directly resulted in the loss or injury you suffered. This is referred to as causation. Your lawyer will use evidence including your doctor's or patient records, witness testimony, and expert testimony to prove that the defendant’s failure to comply with 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 reflects professional medical standards. If a doctor does not meet the standards, and the failure results in an injury, then medical malpractice or negligence may occur. Expert witness testimony from medical professionals that have the same training, certifications or experience can help determine the level of care in a particular situation. State and federal laws, as well as guidelines from the institute, help determine what doctors are required to do for certain kinds of patients.

In order to win a malpractice claim it must be proven that the doctor violated his or duty of care and that the breach was the direct cause of injury. This is referred to in legal terms as the causation element and it is imperative that it is established. For instance, if a broken arm requires an xray the doctor must fix the arm and place it in a cast for proper healing. If the doctor is unable to do this and the patient suffers a permanent loss in the use of their arm, malpractice could have occurred.

Causation

Attorney malpractice claims are based on evidence that shows the attorney's errors caused financial losses to the client. For example when a lawyer does not file a lawsuit within the statute of limitations, which results in the case being lost forever the person who was injured could bring legal malpractice lawsuits (news).

However, it's important to understand that not all mistakes made by attorneys constitute malpractice. The mistakes that involve strategy and planning do not typically constitute malpractice, and attorneys have the ability to make decisions based on their judgments as long as they're reasonable.

In addition, the law allows attorneys considerable leeway to fail to conduct discovery on the behalf of clients, so provided that the decision was not negligent or unreasonable. Legal malpractice is committed by not obtaining crucial documents or facts, such as medical reports or witness statements. Other instances of malpractice include the failure to add certain defendants or claims, like not noticing a survival count in wrongful death cases or the inability to communicate with clients.

It is also important to remember that it must be established that, had it not been the lawyer's negligence, the plaintiff would have won the case. Otherwise, the plaintiff's claim for malpractice will be denied. This requirement makes the process of bringing legal malpractice lawsuits difficult. It is essential to choose an experienced attorney.

Damages

A plaintiff must demonstrate that the attorney's actions have caused actual financial losses in order to win a legal malpractice lawyer suit. In a lawsuit, this must be proven with evidence like expert testimony or correspondence between the attorney and client. In addition the plaintiff must show that a reasonable lawyer would have avoided the harm that was caused by the negligence of the attorney. This is referred to as proximate causation.

Malpractice can manifest in a number of different ways. Some of the most common mistakes are: failing to meet the deadline or statute of limitations; not performing a conflict check on an issue; applying the law in a way that is not appropriate to the client's situation; or breaking an obligation of fiduciary (i.e. mixing trust funds with attorney's personal accounts) or mishandling an instance, and not communicating with clients.

In the majority of medical malpractice cases the plaintiff will seek compensatory damages. These damages compensate the victim for the cost of out-of-pocket expenses and expenses like hospital and medical bills, the cost of equipment to aid in recovery, and lost wages. In addition, victims can claim non-economic damages, like pain and suffering as well as loss of enjoyment life and emotional suffering.

In many legal malpractice cases, there are claims for punitive and compensatory damages. The former compensates victims for the losses caused by the negligence of the attorney, whereas the latter is intended to discourage future malpractice by the defendant.