MALPRACTICE LAWYER

MALPRACTICE LAWYER
Malpractice Lawyer
In law, malpractice is a type of negligence in which the misfeasance, malfeasance or nonfeasance of a professional, under a duty to act, fails to follow generally accepted professional standards, and that breach of duty is the proximate cause of injury to a plaintiff who suffers damages. It is committed by a professional or her/his subordinates or agents on behalf of a client or patient that causes damages to the client or patient. Perhaps the most publicized forms are medical malpractice and legal malpractice by medical practitioners and lawyers respectively, though malpractice suits against accountants (Arthur Andersen) and investment advisors (Merrill Lynch) have featured in the news more recently.



The medical malpractice claim

The parties
The plaintiff is or was the patient, or a legally designated party acting on behalf of the patient, or – in the case of a wrongful-death suit – the executor or administrator of a deceased patient's estate.
The defendant is the health care provider. Although a 'health care provider' usually refers to a physician, the term includes any medical care provider, including dentists, nurses, and therapists. As illustrated in Columbia Medical Center of Las Colinas v Bush (122 S.W. 3d 835, Texas, 2003), "following orders" may not protect nurses and other non-physicians from liability when committing negligent acts. Relying on vicarious liability or direct corporate negligence, claims may also be brought against hospitals, clinics, managed care organizations or medical corporations for the mistakes of their employees.

Elements of the case
A plaintiff must establish all four elements of the tort of negligence for a successful medical malpractice claim.[1]
A duty was owed - a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
A duty was breached – the provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious errors (the doctrine of res ipsa loquitur or 'the thing speaks for itself').
The breach caused an injury – The breach of duty was a proximate cause of the injury.
Damages – Without damages (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent.

The trial
Like all other tort cases, the plaintiff or their attorney files a lawsuit in a court with appropriate jurisdiction. Between the filing of suit and the trial, the parties required to share information through discovery. Such information includes interrogatories, requests for documents and depositions. If both parties agree, the case may be settled early on negotiated terms. If the parties cannot agree, the case will proceed to trial.
The plaintiff has the burden of proof to prove all the elements by a preponderance (51%) of evidence. At trial, both parties will usually present experts to testify as to the standard of care required, and other technical issues during trial. The fact-finder (judge or jury) must then weigh all the evidence and determine which is the most credible.
The factfinder will render a verdict for the prevailing party, and assesses the compensatory and punitive damages, within the parameters of the judge's instructions. The verdict is then reduced to the judgment of the court. The losing party may move for a new trial. In a few jurisdictions, a plaintiff who is dissatisfied by a small judgment may move for additur. In most jurisdictions, a defendant who is dissatisfied with a large judgment may move for remittitur. Either side may take an appeal from the judgment.