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General Legal Terms for Malpractice Claims

Legal terminology can be confusing. Medical terminology can also be confusing. When a client is involved in a medical malpractice lawsuit, they often hear words that are quite unfamiliar. Here is a brief overview of some of the terminology your injury attorney may use:

Affidavit: This is a written statement that is signed under the penalties of perjury.

Allegation: This is the written claim that the plaintiff (victim) makes against the defendant (medical provider) that the plaintiff (via their attorney) intends to prove to the jury.

Answer: This is the written reply that the defendant makes to the allegation. The defendant will either admit to the claim or deny it.

Assumption of risk: An allegation the plaintiff makes that the defendant knew there were dangers involved in the action they were taking, but made the decision to proceed anyway.

Comparative negligence: When more than one defendant is named in the malpractice claim, comparative negligence is the degree of fault each defendant has.

Compensation: Money that the plaintiff is awarded, either in a settlement or by the court, that the defendant has to pay to make up for the injury he or she inflicted on the plaintiff because of their negligent behavior or actions.

Complainant: The plaintiff

Cross-examination: The questioning of one of the party’s witnesses by the other party during a trial, hearing, or deposition.

Damages: Similar to compensation, money the defendant is ordered to pay the plaintiff for the injuries they caused them.

Deposition: When a witness gives pre-trial testimony. Witnesses are sworn under oath and must tell the truth just as if they were testifying in a courtroom.

Discovery: The legal process that allows one party to examine the evidence that the other party will be introducing during the trial.

Dismissal: The order of the court to dismiss the case. If the court dismisses without prejudice, the plaintiff may be able to refile their lawsuit for the same cause. If the court dismisses the case with prejudice, then the plaintiff cannot file the lawsuit again.

Established customary standard of care: This means there is a skill level and care that the average medical professional would have provided to the plaintiff in a similar medical situation as the one that took place that caused the plaintiff’s injury.

Evidence: All documents, objects, spoken or written witness testimony, and any other facts presented to the court to prove or disprove the allegations in the lawsuit.

Exhibit: Documents and physical objects which are presented into evidence during the trial.

Medical incident: The act, error, or omission that occurs during medical treatment.

Medical negligence: Failure of the doctor or other medical professional to adhere to the standards of conduct in place for their particular job duties.

Misdiagnosis: Failure of a medical professional to identify, diagnose, and provide the correct treatment for a plaintiff’s medical condition.

Negligence: The omission or the act by a medical professional which causes an unacceptable or improper level of treatment established by the medical community’s accepted practice standards.

As the lawyers at Cohen & Cohen can explain, if you have any questions regarding a dispute with either a medical practitioner or insurance provider, be sure to contact an experienced lawyer.


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