Common Causes of Malpractice Litigation

Malpractice litigation is a tense process. Whether or malpractice not an error constitutes malpractice depends on the ability of the patient to prove four legal elements that include a professional obligation; breach of this duty; injury caused by the breach and quantifiable damages.

Plaintiffs must be able to prove the elements using evidence such as expert testimony and depositions.

Misdiagnosis and Failure to Diagnose

Inability to recognize an injury or illness accurately could lead to serious complications, or death. Misdiagnosis is a common cause of medical negligence. To prove negligence, the patient or their attorney must show that a competent doctor in similar circumstances and working in the same specialty would not have misdiagnosed the condition.

Every misdiagnosis can be considered to be malpractice, however. Even the most experienced and highly trained doctors make mistakes. Therefore, an allegation of malpractice needs to be supported by other elements such as breach, proximate causation and actual injury. If a doctor fails sterilize his equipment prior the time he administers anesthesia and the patient gets infected because of this, he could be held accountable.

Lawsuits that claim malpractice are usually filed in state trial courts, where the alleged error occurred. Federal courts can be able to hear cases in certain situations. For instance, a claim could be filed in federal court in the event of disputes over the time limit for filing a claim or if there is a substantial difference in citizenship among the parties involved in the case. Additionally, some cases are resolved through binding arbitration that is voluntary. This is a less formal process with professional decision makers. It is intended to save costs, speed up legal proceedings and remove the possibility of excessively generous juries. However, arbitration isn't available for all claims of malpractice.

Dosage for a drug that is not correct

Medication errors--also called medication mistakes--are one of the main causes of medical malpractice lawsuits. They can result from a doctor prescribing a prescription in error or delivering the wrong dose to a patient. These mistakes are usually preventable. According to the circumstances the pharmacy, hospital or other health care provider could be held accountable for the harm caused by an individual who took the wrong dosage of a drug.

A doctor might prescribe the wrong drug because of a misdiagnosis, or simply misreading the prescription. A health care professional may also prescribe the wrong dosage due to a breakdown in communication. For example the nurse might read a doctor's script incorrectly or a pharmacist may make an error when filling the prescription. In other situations, a physician might delay administering the correct medication to the patient, which could result in the patient's condition getting worse.

To prevail in an action for malpractice, a victim must show that the medical professional did not meet their standard of care, and that the negligence directly contributed to their injuries. This requires the testimony of a medical expert. Medical malpractice cases also must establish the extent and damages of the victim's injuries. This includes the costs of treatment for the victim as well as any wages lost. The greater person's losses are, the more valuable the claim will be.

Incorrect Procedure

This kind of incident is not unusual. It may seem impossible for medical professionals to perform the incorrect procedure on patients, however, it happens. A surgeon who commits this mistake could be held accountable for malpractice. Patients who are injured as a result of an error in surgery could be held accountable for any negligence that occurred during the procedure.

A health professional accused of malpractice must demonstrate that the patient was injured because of a specific act, or inability to act. To prove this, the legal team representing the patient must prove: (1) that the doctor had a responsibility to provide care or treat the patient; (2) that he did not fulfill that duty; (3) that a causal link exists between the breach and injury; and (4) the injury results in damages the legal system can address.

A breach of duty of care has no meaning unless it results in injury. This is the reason why medical malpractice attorney cases tend to be based on the legal doctrine "res ipsa locquitur," which says that certain injuries are so obvious they can be explained only through negligence.

Depending on the facts the plaintiff (the person who filed the claim or their legal representative) or their lawyer can decide to file a lawsuit in either state or federal court. Most malpractice cases are filed in state courts, however under limited circumstances the medical malpractice lawsuit may be filed in federal district court.

Wrong Surgery

Surgery performed on the wrong site is a very rare error, but it may be considered medical malpractice if the procedure is performed on the wrong part of the body. This kind of error usually occurs as due to miscommunication between members of a surgical team, or production pressure that leads to a surgeon being assigned multiple surgeries at once. In these instances the surgeon isn't solely responsible for a wrong-site procedure because of the legal principle of "res ipsa locquitur", which states that the result speaks for itself and cannot be attributed to negligence.

If a patient is injured due to surgery performed on the wrong site it is possible that he or she will require additional procedures to repair problems that are aggravated by the surgical error. Patients and their families are left with expensive medical bills. These costs should be taken into consideration when calculating the financial consequences of medical malpractice lawsuits.

Surgeons are most often held liable for surgical errors because they are the ones who are responsible for properly prepping for the operation by double-checking patient's chart and medical records, communicating effectively with the other members of the medical team, and making sure the incision is located at the correct location. However, in some cases hospitals or malpractice anesthesiologists may also be liable. Medical malpractice lawsuits are typically filed in state court, but can be transferred under certain circumstances to federal court.