Medical Malpractice Lawsuits

Attorneys have a fiduciary responsibilities to their clients, and they are expected act with a high degree of skill, diligence and care. But, as with all professionals attorneys make mistakes.

A mistake made by an attorney constitutes an act of malpractice. To prove legal malpractice, an victim must prove the breach of duty, duty, causation and damages. Let's review each of these elements.

Duty-Free

Medical professionals and doctors swear an oath to apply their expertise and knowledge to treat patients and not to cause further harm. Duty of care is the basis for a patient's right to compensation if they are injured by medical negligence. Your lawyer can help determine if the actions of your doctor violated this duty of care, and whether these breaches caused injuries or illness to you.

Your lawyer has to prove that the medical professional was bound by a fiduciary duty to act with reasonable competence and care. This can be demonstrated by eyewitness testimony of witnesses, doctor-patient records, and expert testimony of doctors with similar education, experience and training.

Your lawyer will also need to prove that the medical professional breached their duty of caring in not adhering to the accepted standards in their field. This is usually referred to by the term negligence. Your attorney will compare what the defendant did with what a reasonable person would do in a similar situation.

Your lawyer must also prove that the defendant's negligence directly caused your injury or loss. This is known as causation. Your attorney will use evidence, such as your doctor/patient reports, witness testimony and expert testimony, to prove that the defendant's failure to adhere to the standard of care was the direct cause of the injury or loss to you.

Breach

A doctor is responsible for the duties of care that conform to the highest standards of medical professionalism. If a doctor fails to live up to those standards and the failure results in injury, then medical malpractice or negligence could occur. Typically, expert testimony from medical professionals who have the same training, qualifications or certifications will aid in determining what the best standard of treatment should be in a particular case. Federal and state laws, along with institute policies, determine what doctors are required to provide for specific types of patients.

To be successful in a malpractice case, it must be proven that the doctor breached his or her duty of care and that this violation was the sole cause of an injury. This is known in legal terms as the causation element, and it is vital to prove it. If a physician has to perform an x-ray on an injured arm, they have to put the arm in a cast and then correctly place it. If the doctor fails to perform this, and the patient suffers a permanent loss of use of the arm, malpractice could be at play.

Causation

Attorney malpractice claims are based on the evidence that the attorney committed mistakes that led to financial losses for the client. For instance, if a lawyer does not file an action within the timeframe of limitations, which results in the case being lost for ever and the victim could bring legal malpractice lawsuits.

It is important to understand that not all mistakes by attorneys constitute malpractice. Strategy and planning errors aren't usually considered to be a sign of malpractice. Attorneys have a broad choice of discretion when it comes to making decisions so long as they're able to make them in a reasonable manner.

The law also gives attorneys the right to refuse to conduct discovery for a client as long as the error was not unreasonable or a result of negligence. Failure to uncover important facts or documents like medical reports or statements of witnesses or medical reports, could be an instance of legal malpractice. Other examples of malpractice are a failure to add certain defendants or claims such as omitting to submit a survival count in a wrongful-death case, or the repeated and prolonged inability to communicate with a client.

It is also important to keep in mind the fact that the plaintiff needs to prove that if not for the lawyer's negligent conduct, they could have won their case. The claim of malpractice by the plaintiff will be rejected when it isn't proven. This makes the process of bringing legal malpractice lawsuits difficult. It is crucial to find an experienced attorney.

Damages

A plaintiff must show that the attorney's actions have caused actual financial losses to win a legal malpractice lawsuit. In a lawsuit, this must be proven with evidence such as expert testimony and correspondence between the attorney and the client. A plaintiff must also demonstrate that a reasonable attorney would have prevented the harm caused by the lawyer's negligence. This is known as proximate cause.

The definition of malpractice can be found in a variety of ways. Some of the more common kinds of malpractice are failing to meet a deadline, including a statute of limitation, failure to conduct a conflict check or other due diligence on the case, not applying the law to a client's case or breaking a fiduciary duty (i.e. merging funds from a trust account the attorney's own accounts as well as not communicating with the client are all examples of malpractice.

In the majority of medical malpractice cases the plaintiff will seek compensatory damages. They compensate the victim for the expenses out of pocket and losses, such as medical and hospital bills, the cost of equipment that aids in recovering, and lost wages. Victims are also able to claim non-economic damages such as pain and discomfort or loss of enjoyment in their lives, as well as emotional stress.

Legal malpractice cases typically involve claims for compensatory as well as punitive damages. The former compensates a victim for losses caused by the negligence of the attorney, while the latter is intended to discourage future malpractice lawyers by the defendant.