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Medical Malpractice Lawsuits

Attorneys have a fiduciary duty to their clients and they must behave with a degree of diligence, skill and care. However, like all professionals, attorneys make mistakes.

There are many mistakes made by an attorney are a result of malpractice. To establish legal malpractice, the aggrieved party has to prove obligation, breach, causation and damage. Let's take a look at each of these components.

Duty

Doctors and other medical professionals swear to use their training and experience to treat patients and not cause harm to others. A patient's legal right to be compensated for injuries sustained from medical malpractice hinges on the notion of duty of care. Your lawyer can assist you determine if your doctor's actions violated this duty of care, and whether those breaches caused injury or illness to you.

Your lawyer must prove that the medical professional you hired owed the fiduciary obligation to act with reasonable competence and care. Proving that this relationship existed may require evidence, such as your doctor-patient records, eyewitness statements and expert testimony from doctors with similar experience, education and training.

Your lawyer will also need to prove that the medical professional violated their duty of caring by not adhering to the accepted standards in their field. This is often called negligence, and your attorney will evaluate the defendant's conduct to what a reasonable person would do in the same situation.

Your lawyer must show that the defendant's breach of duty directly resulted in your loss or injury. This is known as causation. Your attorney will use evidence such as your medical documents, witness statements, and expert testimony to demonstrate that the defendant's failure to live up to the standard of care in your case was the direct cause of your loss or injury.

Breach

A doctor is responsible for the duties of care that reflect the standards of medical professional practice. If a doctor doesn't adhere to these standards and the result is an injury, then medical malpractice or negligence could result. Expert evidence from medical professionals who have the same training, certifications or experience can help determine the level of care for a specific situation. State and federal laws, as well as institute policies, help determine what doctors are required to do for certain types of patients.

To prevail in a malpractice case it must be proven that the doctor violated his or their duty of care, and that this breach was a direct cause of injury. This is referred to in legal terms as the causation element and it is imperative to prove it. For instance, if a broken arm requires an xray the doctor should properly place the arm and put it in a cast to ensure proper healing. If the doctor failed to do this and the patient suffered a permanent loss of function of that arm, then malpractice could have occurred.

Causation

Lawyer malpractice claims are based on evidence that the lawyer made mistakes that caused financial losses for the client. For instance the lawyer does not file an action within the timeframe 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 mistakes made by lawyers are a sign of malpractice. Mistakes in strategy and planning aren't usually considered to be a violation of the law attorneys are given the ability to make judgement calls so long as they're reasonable.

The law also allows lawyers the right to refuse to conduct discovery on behalf of a client, so long as the reason for the delay was not unreasonable or negligent. Legal malpractice can be triggered by not obtaining crucial documents or facts, like medical reports or witness statements. Other instances of malpractice include the inability to add certain defendants or claims, like failing to include a survival count for an unjustly-dead case or the constant failure to communicate with clients.

It's also important to keep in mind that it must be established that, had it not been the lawyer's negligence, the plaintiff would have won the case. The claim of malpractice by the plaintiff is rejected when it isn't proven. This makes the process of bringing legal malpractice lawsuits difficult. It is essential to choose an experienced attorney.

Damages

In order to prevail in a legal malpractice lawsuit, the plaintiff must show actual financial losses that result from the actions of an attorney. This has to be demonstrated in a lawsuit using evidence like expert testimony, correspondence between client and attorney along with billing records and other records. In addition the plaintiff must demonstrate that a reasonable lawyer could have avoided the harm caused by the negligence of the attorney. This is known as the proximate cause.

The act of malpractice can be triggered in a variety of different ways. The most frequent kinds of malpractice are: failing to adhere to a deadline, which includes a statute of limitations, a failure to conduct a conflict check or other due diligence check on the case, not applying law to a client's situation and breaching a fiduciary responsibility (i.e. mixing trust funds with attorney's personal accounts) or mishandling the case, and not communicating with the client.

In most medical malpractice cases, the plaintiff will seek compensatory damages. These compensations are intended to compensate the victim for the cost of out-of-pocket expenses and losses, such as hospital and medical bills, equipment costs to help recover and lost wages. Victims may also claim non-economic damages such as pain and discomfort or loss of enjoyment in their lives, and emotional anxiety.

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