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Making Medical Malpractice Legal

Medical malpractice is a highly specialized legal area. Physicians must take steps to guard against potential liability by purchasing appropriate medical malpractice insurance.

Patients need to prove that the physician's breached duty caused them injury. Damages are contingent on economic losses such as lost income, future medical costs as well as non-economic losses, like discomfort and pain.

Duty of care

The first element that medical malpractice lawyers need to establish in the case is the duty of care. All healthcare professionals have the obligation of acting in accordance with the prevailing standard of care in their particular field. This includes nurses and doctors as well as other medical professionals. This includes medical students, interns and assistants under the supervision of a doctor or physician.

A medical malpractice lawsuits expert witness determines the standard of care in the courtroom. They review the medical records to determine what an experienced doctor in the same area would have done under similar circumstances.

If the healthcare professional's actions or their lack of actions fell below this standard, they have breached the duty of care and resulted in injuries. The injured patient has to prove that the breach of duty by the healthcare professional directly led to their losses. This could include scarring, discomfort, and other injuries. These can include medical expenses as well as lost wages and other financial losses.

For instance If a surgeon had left a surgical instrument inside the patient following surgery, it can cause discomfort and even could cause damage. A medical malpractice lawyer can prove that the surgical team's lack of duty caused the damage through testimony from a medical expert. This is referred to as direct causation. The patient must also provide evidence of their damages.

Breach of duty

If a doctor deviates from the accepted standard of care and this deviation causes an injury to the patient then a malpractice lawsuit can be filed. The person who was injured must prove that the physician breached their duty of care by providing treatment that was not up to par. In other words, the doctor acted negligently and this led to the patient to suffer damages.

To establish that the doctor violated their duty of care, a competent attorney needs to present expert testimony to show that the defendant did not have or exercise the level of expertise and knowledge possessed by doctors in their field of expertise. Additionally, the plaintiff has to show a direct relationship between the negligence alleged and the injuries sustained; this is known as causation.

Furthermore, the injured plaintiff must demonstrate that they would not have chosen the course of treatment if they had been adequately informed. This is also known as the principle of informed consent. Physicians have a duty to inform patients of potential risks or complications that could arise from a procedure before they perform surgery or put the patient under anesthesia.

The statute of limitations is a period of time that must be observed by the injured patient to bring a claim against medical malpractice. No matter how grave the mistake of the health care provider or the extent to which the patient has been injured the judge will almost always dismiss any claim filed after statutes of limitations have passed. Certain states require that parties to a medical malpractice lawsuit submit their claims to an independent screening panel or to arbitration that is voluntary and binding in lieu of trial.

Causation

Medical malpractice claims require a significant investment of time and money, both for the doctors involved in the litigation and their lawyers. The process of proving that the treatment of a doctor was not in accordance with the accepted standards requires extensive examination of medical records, interviews with witnesses, and an analysis of medical literature. The law requires that lawsuits be filed within the deadline established by the court. Generally, this deadline--called the statute of limitations -- begins to run after the medical error was made or when the patient realized (or ought to have realized according to the law) that they had been harmed due to a doctor's error.

Proving causation is one of the four fundamental elements of a medical malpractice case and arguably the most difficult to prove. A lawyer must establish that a doctor's failure to fulfill the duty of care directly caused harm to the patient, and that the losses or injuries could not have occurred if it weren't due to the negligence of a physician. This is referred to as actual or proximate cause. The legal requirement for proving this aspect differs from that used in criminal cases, where proof must be beyond a reasonable doubt.

If a lawyer is able to establish the three main elements, then the person who was the victim of malpractice could be entitled to financial compensation from the defendant. The monetary damages are intended to compensate the victim for injuries, loss in quality of life and other damages.

Damages

Medical malpractice cases are usually complex and require expert testimony. The plaintiff's lawyer must prove that a doctor did not follow an established standard of medical treatment and that the failure resulted in injury and that this injury resulted in damages. The plaintiff must also demonstrate that the injury can be quantified in terms of financial value.

Medical negligence claims are one of the most complicated and expensive legal actions. To reduce the cost of litigation, states have implemented tort reform measures aimed at improving efficiency in limiting frivolous claims, and compensating injured parties fairly. Some of these measures include reducing the amount that plaintiffs can get for pain and suffering and limiting the number of defendants that could be accountable for the payment of an award (joint and several liability) and making arbitration, mediation or the submission of an action to a panel for review prior to trial; and imposing caps on the amount of damages awarded in medical malpractice lawsuits.

Many malpractice cases also involve complex technical issues that are difficult for juries and judges. This is why experts are so important in these cases. For example when a surgeon makes an error during surgery the patient's lawyer has to employ an orthopedic expert to explain the reason for the mistake would not have occurred had the surgeon performed the surgery in accordance with the applicable medical guidelines of care.