Making Medical Malpractice Legal

Medical malpractice is a highly specialized legal issue. Physicians must be aware of the need to protect themselves against liability by obtaining adequate medical malpractice insurance.

Patients must prove that a physician's breach of duty has caused them harm. Damages are dependent on economic losses, such as lost income, future medical expenses as well as non-economic losses, such as pain and discomfort.

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 a duty towards their patients to act in accordance with the standard of care that is applicable to their field. This includes nurses, medical malpractice lawyers doctors and other medical professionals. It also extends to assistants as well as interns and medical students under the direction of an attending doctor or physician.

A medical expert witness is able to determine the standard of care in the courtroom. They review the medical documents and compare them to what a competent doctor in the same field would have done under similar circumstances.

If the healthcare professional's or their lack of actions fell below this standard they have breached duty of care, and resulted in injury. The injured patient has to show that the professional's actions directly led to their losses. This can include scarring, injuries, and pain. This could include medical malpractice lawsuit expenses loss of wages, as well as other financial losses.

If a surgeon has left the surgical instrument in a patient after surgery, this can cause discomfort or other issues, that could cause damage. A medical malpractice lawyer can be able to prove through the testimony an expert medical professional that the surgical team's negligence caused the damage. This is referred to as direct causality. The patient must also provide proof of their injuries.

Breach of duty

If a medical professional departs from the accepted standard of care, and this deviation results in injury to the patient the malpractice claim could be filed. The person who was injured must prove that the doctor violated their duty to care by providing care that was not up to par. The doctor must have acted negligently and caused the patient to suffer injury.

To prove that a physician breached his duty to care, a skilled attorney must present an expert witness testimony to show that the defendant did not possess or exercise the level of knowledge and skill that physicians in their specialty hold. The plaintiff must also demonstrate that there is a direct correlation 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 the treatment they received if informed. This is also called the principle of informed permission. Doctors are required to inform patients about possible risks or complications that could arise from procedures prior to deciding to perform surgery or put the patient under anesthesia.

The statute of limitations is a period of time that must be adhered to by the person who has been injured to file a claim for medical malpractice. A court will usually dismiss a claim that is filed after the statute of limitations has expired, no matter how egregious the mistake made by the health provider or how serious the harm to the patient was. Some states require that the parties to a lawsuit for medical malpractice submit their claims to an independent screening panel or to voluntary binding arbitration as an alternative to the trial.

Causation

Both the lawyers and the physicians involved in the litigation have to spend a considerable amount of time and resources to prove medical malpractice. The process of proving a doctor's treatment departed from the accepted standard requires extensive examination of medical records, interviews with witnesses, and a thorough analysis of medical literature. A law requires that lawsuits be filed within the timeframe that is set by the court. Typically, this deadline, also known as the statute of limitations--begins to run when a health care treatment error occurred or when the patient realized (or should have known according to the law) that they were harmed because of a medical error.

Causation is the fourth and most important element of a malpractice case. It is often the most difficult to prove. A lawyer must show that the breach of the duty of care directly caused injury to the patient and that the damages or injuries were not the case but for the physician's negligence. This is referred to as actual or proximate cause and the legal requirement to prove this element is different from the one required in criminal proceedings, where proof must be beyond reasonable doubt.

If an attorney can prove these three factors the person who was harmed could be entitled to monetary compensation. The monetary damages are intended to compensate the victim for injuries and loss of quality of life, and other loss.

Damages

Medical malpractice cases are often complex and require extensive expert testimony. The lawyer representing the plaintiff must prove that the doctor did not meet a minimum standard of care, that such negligence caused injury, and that such injury resulted in damages. The plaintiff must also demonstrate that the injury can be quantified in terms of dollar value.

Medical negligence claims are among the most difficult and expensive legal proceedings to bring. To lower the expense of litigation, states have introduced tort reform measures that aim to improve efficiency, limiting frivolous claims and compensating injured parties fairly. Some of these measures include limiting the amount plaintiffs can recover for pain and suffering as well as limiting the number defendants who are responsible for paying an award (joint and multiple liability) and making arbitration, mediation or the submission of a claim to a panel for review prior to trial; and setting limits on the amount of damages awarded in medical malpractice lawsuits.

In addition, many malpractice claims are highly technical issues that are difficult for judges and juries to understand. This is why experts are so crucial in these cases. For example, if a surgeon makes a mistake during a surgery the patient's lawyer needs to hire an orthopedic expert to explain how the mistake would not have occurred had the surgeon performed the surgery in accordance with the relevant medical standards of care.