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Making Medical Malpractice Legal

Medical malpractice is a thorny legal area. Physicians must take steps to safeguard themselves against risk by purchasing adequate medical malpractice insurance coverage.

Patients must show that the doctor's breach of duty caused harm to them. Damages are dependent on the actual economic losses such as lost income and the cost of future medical procedures, as well as non-economic losses such as pain and suffering.

Duty of care

The first thing medical malpractice lawyers need to establish in a case is the duty of care. All healthcare professionals owe their patients a duty to act in accordance with the prevailing standard of care applicable to their specific field. This includes nurses, doctors and other medical professionals. This includes medical students, interns and assistants under the supervision of a physician or doctor.

The standard of care is determined by a medical expert witness in the court. They examine the medical records and compare them with what a qualified doctor in the same field would be doing under similar circumstances.

If the healthcare professional's actions or the lack of actions fell short of this standard, they acted in violation of their duty of care and caused injury. The injured patient is then required to prove that the breach of duty by the healthcare professional directly led to their losses. This could include scarring, pain and other injuries. They also can include financial losses, such as medical malpractice attorney expenses and lost wages.

For instance the case where a surgeon left a surgical instrument inside the patient following surgery, it could trigger discomfort and other issues that result in damage. Medical malpractice lawyers can prove through the testimony of an expert medical professional that the negligence of the surgical team resulted in these damage. This is referred to as direct causation. The patient must also provide evidence of their damages.

Breach of duty

A malpractice claim may be filed when medical professionals breach the accepted standard of care and results in injury to patients. The injured party must prove that the doctor violated their duty of care by offering substandard treatment. In other words, the doctor was negligent and this caused the patient to suffer damages.

To establish that a doctor breached his duty of care, a skilled attorney must present an expert witness testimony to demonstrate that the defendant was unable to possess or exercise the same level of skill and knowledge that doctors in their field have. The plaintiff should also prove that there is a direct link between the alleged negligence and the harms sustained. This is referred to as causation.

A person who has been injured must also demonstrate that they would not have opted for an alternative treatment if informed. This is also known as the principle of informed permission. Physicians have a duty to inform patients of possible complications or risks that may arise from the procedure prior to performing surgery or put the patient under anesthesia.

The statute of limitations is a time period that must be adhered to by the injured person to make a claim for medical malpractice. A court is almost always able to dismiss a claim that is filed after the statute of limitations has passed regardless of how severe the error made by the healthcare provider or how serious the harm to the patient was. Certain states have laws that require the participants in a medical malpractice suit to engage in binding arbitration at a voluntary basis or submit their claims to a screening panel as an alternative to going to trial.

Causation

Both the attorneys and the doctors who are involved in the litigation need to invest a significant amount of time and resources to prove medical malpractice. The process of proving the doctor's treatment was different from the accepted standard requires extensive analysis of medical records, interview with witnesses, and a thorough analysis of medical literature. The law requires that lawsuits be filed within the deadline that is set by the court. Generally speaking, this deadline -- also known as the statute of limitations--begins to run when the medical malpractice occurred or when the patient realized (or should have known according to the law) that they were hurt by a mistake made by a doctor.

Proving causation is among the four main elements of a medical malpractice claim, and probably the most difficult one to prove. A lawyer must show that a doctor's breach of the duty of care directly resulted in injury to the patient, and that the losses or injuries could not have occurred except due to the negligence of the doctor. This is known as actual or proximate cause and the legal standard to prove this is different from the standard required in criminal proceedings, where proof must be beyond reasonable doubt.

If an attorney can prove these three factors, the victim of malpractice may be entitled to financial compensation. These monetary damages are meant to compensate the victim's injuries or loss of quality of life, and other expenses.

Damages

Medical malpractice cases are typically complicated and require a large amount of expert testimony. The plaintiff's lawyer must show that a physician did not follow the standard of medical care and that the failure resulted in injury, and that this injury was caused by damages. The plaintiff must also prove that the injury was quantifiable in terms of dollars.

Medical negligence claims are among the most complicated and expensive legal proceedings to bring. To lower the expense of lawsuits, states have introduced tort reform measures aimed at improving efficiency by limiting frivolous claims as well as compensating injured parties fairly. These measures include limiting the amount plaintiffs can receive for pain and suffering, limiting the number of defendants responsible for paying an award and requiring arbitration or mediation.

Additionally, many malpractice claims involve highly technical issues that are difficult for juries and judges to grasp. Experts are vital in these cases. For instance when a surgeon makes an error during surgery the patient's attorney must hire an orthopedic expert to explain how the error would not have occurred should the surgeon have acted according to the relevant medical guidelines of care.