Medical malpractice can be defined as care by a doctor, nurse, or other medical professional, that causes harm. Medical malpractice sometimes also has an aspect of intent – the health professional knowingly did not perform a procedure or give treatment according to the accepted standard of practice, for example, and caused harm to the patient as a result. Medical negligence can also come from performing a procedure or giving a treatment that does not meet the accepted standard of practice as the result of a mistake, however, and does not require malicious intent on the part of the medical professional involved. Though a seemingly simple definition, there are qualifications. A doctor cannot be successfully accused of malpractice just because the result of their treatment did not meet patient expectations. Even physician errors are sometimes not considered medical malpractice.
What conditions must be met for a case to be considered medical malpractice?
As mentioned above, not every error or negative outcome is considered medical malpractice. In fact, there are a few different considerations that must be met in order to prove malpractice. First, the health professional in question must have had a working relationship with you. If the person in question is a doctor, did you hire the doctor to treat you, and did the doctor begin treatments? If the doctor involved was a consulting physician and not the primary physician, for example, you may not have a working relationship with them.
Second, for malpractice to have occurred, the doctor must have departed significantly from the accepted medical standard of care. In other words, did the doctor’s actions significantly depart from what a reasonably skillful and careful doctor would have done? If so, there is one more condition that should be met before a case is considered medical malpractice. Did the doctor’s negligent actions lead to patient injury? This can be difficult to determine if the doctor is treating a long-standing condition that is actively worsening. Did the doctor’s treatments cause the condition to worsen, or did the condition worsen on its own? To prove negligence, you would need to prove the doctor was “more likely than not” responsible. Finally, you would need to prove the doctor’s mistake lead to a specific kind of injury, including physical pain, mental anguish, medical bills, and lost income.
Common Categories of Medical Malpractice
Common types of medical malpractice include failure to diagnose (or delayed diagnosis), improper treatment, and failure to warn the patient of known risks.
Failure to Diagnose
Failure to diagnose includes not discovering the cause of an illness or properly diagnosing the illness itself. To determine malpractice, the actions of the doctor in question are compared to the actions of a competent doctor in the same circumstances. If the competent doctor would have discovered the cause of the illness or properly diagnosed the illness itself, then a malpractice case could be made against the doctor who made the mistake.
Improper treatment includes using the wrong treatment for the problem at hand. More than that, however, the improper treatment must have been so improper that no competent doctor would have chosen that treatment. A variation on this type of malpractice is selecting the correct treatment but administering it incompetently. Again, comparing the actions of the doctor in question to a competent doctor is one way to prove malpractice.
Failure to Warn of Known Risks
Failure to warn patients of known risks is another form of malpractice because doctors have a duty of informed consent. If a patient who had been informed properly of the possible risks of a procedure or treatment would likely have decided against it, then the doctor who decided to proceed with the treatment without properly informing the patient of the risks could be guilty of malpractice. That’s especially true if the patient was injured in a way that the doctor should have warned the patient about.
The Scope of Medical Malpractice
Mistakes are not limited to physicians. Nurses can make mistakes in routine procedures, including dosing a patient with an improper medication, giving a patient medicine to which they are allergic, or failing to notice an alarming monitor reading. A physician’s assistant can make similar errors. That makes sense, of course, given that a physician’s assistant performs some of the tasks the physician does, including writing prescriptions.
Besides determining if your circumstances qualify as medical malpractice, medical malpractice attorneys will guide you through the complex rules that regulate how medical malpractice cases are pursued. The rules vary from state to state, and you will need a lawyer who understands the rules in different jurisdictions. It’s best to opt for a seasoned attorney who has been practicing in the area of medical malpractice for a long time.
Specific Medical Malpractice Suit Requirements
There are a few specific requirements that medical malpractice cases must meet. First, a statute of limitations applies (this varies by jurisdiction). Usually, it is no more than two years, although the point at which time the clock begins varies. Once the period of time allowed by the statute of limitations has passed, any case brought will be dismissed regardless of the evidence presented. You might also have to submit your case to a medical malpractice review panel before taking it to court. Evidence would then be reviewed by experts to determine if medical malpractice has occurred or not. If there is a finding of no malpractice, a suit later submitted to a court may be rejected. Testimony or written opinions by medical experts may be required at trials or at medical malpractice review panels.
Is it difficult to bring a malpractice suit against a healthcare professional? To a degree, yes, but the system is designed to weed out frivolous lawsuits, or those that have only weak evidence. The system is also designed to help strengthen an initial case before it goes to court or is presented for a settlement. With the assistance of a capable and experienced personal injury law firm, someone injured by medical malpractice can prevail. If you’ve been hurt by one of the common medical malpractice errors described above, reach out to Harrell & Harrell today at 904-251-1111 to schedule a free, no-obligation consultation.