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Medical Malpractice Lawsuits

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

The mistakes made by attorneys are legal malpractice law firms. To prove legal malpractice, an victim must prove duty, breach, causation and damage. Let's look at each of these aspects.

Duty-Free

Doctors and other medical professionals swear to use their training and skills to cure patients and not cause harm to others. Duty of care is the basis for patients' right to compensation when they suffer injuries due to medical malpractice. Your attorney will determine if your doctor's actions violated the duty to care and if these breaches caused you injury or illness.

Your lawyer must demonstrate that the medical professional was bound by the fiduciary obligation to act with reasonable skill and care. This relationship may be proven by eyewitness testimony, doctor-patient records and expert testimony of doctors who have similar educational, experience and training.

Your lawyer will also need to prove that the medical professional breached their duty of caring by not adhering to the accepted standards of their field. This is often referred to as negligence. Your lawyer will examine the defendant's actions to what a reasonable person would perform in the same situation.

Your lawyer must also show that the defendant's negligence caused direct injury or loss. This is known as causation. Your attorney will rely on evidence like your doctor-patient records, witness statements and expert testimony to show that the defendant's failure to adhere to the standard of care in your case was the direct cause of your injury or loss.

Breach

A doctor is responsible for the duties of care that are consistent with the highest standards of medical professionalism. If a doctor does not adhere to these standards and that failure results in injury, medical malpractice or negligence could occur. Expert testimonials from medical professionals who have similar training, certifications, skills and experience can help determine the quality of care for a specific situation. Federal and state laws, along with guidelines from the institute, help define what doctors are expected to do for certain kinds of patients.

To prevail in a malpractice lawsuit the case must be proved that the doctor violated his or their duty of care, and that this breach was the direct cause of injury. In legal terms, this is referred to as the causation component, and it is essential that it is established. For example an injured arm requires an x-ray the doctor has to properly set the arm and then place it in a cast to ensure proper healing. If the doctor was unable to complete the procedure and the patient was left with permanent loss of the use of the arm, then malpractice may have occurred.

Causation

Attorney malpractice claims are built on the basis of evidence that a lawyer made mistakes that resulted in financial losses for the client. For example, if a lawyer does not file a lawsuit within the statute of limitations, leading to the case being lost for ever, the injured party could bring legal malpractice lawsuits.

It is important to understand that not all errors made by attorneys are mistakes that constitute malpractice. Mistakes in strategy and planning do not typically constitute malpractice attorneys have lots of freedom to make judgement calls so long as they are reasonable.

Likewise, the law gives attorneys a lot of discretion to conduct a discovery process on the behalf of clients, so long as the action was not unreasonable or negligent. Legal malpractice can be triggered through the failure to uncover important documents or information, such as medical reports or witness statements. Other instances of malpractice include inability to include certain defendants or claims, such as forgetting to include a survival count in a wrongful-death case or the frequent and persistent inability to contact clients.

It is also important to keep in mind the necessity for the plaintiff to demonstrate that, if it weren't the lawyer's negligence they would have won their case. If not, the plaintiff's claims for malpractice will be rejected. This makes the process of bringing legal malpractice lawsuits difficult. This is why it's important to choose a seasoned attorney to represent you.

Damages

A plaintiff must show that the attorney's actions resulted in actual financial losses in order to win a legal malpractice suit. This must be shown in a lawsuit through evidence such as expert testimony, correspondence between the client and attorney along with billing records and other documentation. A plaintiff must also demonstrate that a reasonable attorney could have prevented the damage caused by the negligence of the lawyer. This is referred to as proximate cause.

Malpractice occurs in many ways. Some of the more common types of malpractice include: failing to adhere to a deadline, which includes a statute of limitations, a failure to conduct a check on conflicts or any other due diligence on the case, not applying the law to the client's situation, breaching a fiduciary duty (i.e. the commingling of funds from a trust account with the attorney's own accounts as well as failing to communicate with the client are just a few examples of misconduct.

Medical malpractice suits typically involve claims for compensatory damages. The compensations pay for out-of pocket expenses and expenses such as hospital and medical bills, the cost of equipment to aid recovery, and lost wages. Victims are also able to claim non-economic damages like discomfort and pain and loss of enjoyment their lives, and emotional suffering.

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