Medical Malpractice Lawsuits

Attorneys have a fiduciary duty to their clients, and they must act with skill, diligence and care. Attorneys make mistakes, just like any other professional.

Not all errors made by attorneys are a result of malpractice. To prove legal negligence the victim must demonstrate duty, breach of duty, causation, and damages. Let's examine each of these aspects.

Duty

Medical professionals and doctors swear by their training and skills to cure patients and not cause further harm. A patient's legal right to receive compensation for injuries resulting from medical malpractice rests on the concept of duty of care. Your attorney can determine if the actions of your doctor violated the duty of care and if those breaches resulted in your injury or illness.

Your lawyer must establish that the medical professional you hired owed a fiduciary duty to act with reasonable skill and care. This relationship may be proven by eyewitness testimony of witnesses, doctor-patient reports and expert testimony from doctors with similar education, experience, and training.

Your lawyer will also have to prove that the medical professional breached their duty of care by not living up to the standards of practice that are accepted in their area of expertise. This is usually referred to by the term negligence. Your attorney will compare the actions of the defendant to what a reasonable person would do in the same situation.

In addition, your lawyer must show that the defendant's breach of duty directly caused your loss or injury. This is referred to as causation, and your lawyer will make use of evidence such as your medical documents, witness statements and expert testimony to show that the defendant's inability to uphold the standards of care in your case was the direct cause of your injury or loss.

Breach

A doctor has a duty of care to his patients which is in line with professional medical standards. If a doctor does not meet the standards, and the failure results in an injury or medical malpractice, then negligence could result. Typically experts' testimony from medical professionals with similar training, skills and certifications will help determine what the standard of treatment should be in a particular case. Federal and state laws and institute policies can also be used to define what doctors must do for specific types of patients.

To win a malpractice claim the evidence must prove that the doctor acted in violation of his or her duty to care and that the breach was a direct reason for an injury. This is referred to in legal terms as the causation component and it is imperative that it be established. For example in the event that a damaged arm requires an x-ray the doctor must properly set the arm and then place it in a cast to ensure proper healing. If the doctor is unable to perform this, and the patient suffers a permanent loss in use of the arm, malpractice may have taken place.

Causation

Attorney malpractice claims are based on evidence that demonstrates that the attorney's mistakes caused financial losses to the client. For instance when a lawyer fails to file a lawsuit within the prescribed time of limitations, resulting in the case being lost for ever the person who was injured could bring legal malpractice lawsuits.

It's important to recognize that not all mistakes made by attorneys are considered to be malpractice. Strategies and mistakes do not typically constitute malpractice attorney attorneys are given a lot of latitude to make judgement calls so long as they're reasonable.

The law also gives attorneys considerable latitude to not perform discovery on behalf of a client, so long as the failure was not unreasonable or a result of negligence. Failing to discover important information or documents like witness statements or medical reports or medical reports, could be an instance of legal malpractice. Other examples of malpractice are the failure to add certain defendants or claims, like failing to include a survival count for wrongful death cases or the inability to communicate with clients.

It's also important to note that it must be established that if it weren't the lawyer's negligence, the plaintiff would have won the underlying case. The claim of the plaintiff for malpractice will be dismissed if it's not proved. This requirement makes the process of bringing legal malpractice lawsuits difficult. For this reason, it's crucial to hire an experienced attorney to represent you.

Damages

To prevail in a legal malpractice case, a plaintiff must demonstrate actual financial losses incurred by the actions of the attorney. In the case of a lawsuit this has to be proven with evidence such as expert testimony and correspondence between the attorney and the client. In addition, the plaintiff must prove that a reasonable lawyer would have avoided the damage caused by the negligence of the attorney. This is referred to as the proximate cause.

It can happen in many different ways. Some of the most common mistakes include: not meeting an expiration date or statute of limitations; failing to conduct the necessary conflict checks on an issue; applying the law improperly to a client's particular situation; and breaking the fiduciary obligation (i.e. mixing funds from a trust account the attorney's personal accounts or handling a case improperly and not communicating with the client are all examples of malpractice.

In most medical malpractice cases the plaintiff is seeking compensation damages. These compensate the victim for expenses out of pocket and losses, such as hospital and medical bills, the cost of equipment needed to aid in recovery, and lost wages. Victims may also claim non-economic damages such as discomfort and pain, loss of enjoyment of their lives, and emotional suffering.

In a lot of legal malpractice cases there are cases for punitive and compensatory damages. The former compensates victims for losses resulting from the negligence of the attorney, while the latter is designed to discourage future misconduct by the defendant.