If you believe a doctor (or any healthcare provider) has made a medical error that caused you harm, you may be able to sue them for medical malpractice. According to Nolo, one of the key points to prove is that the harm you allege is not merely an undesired outcome; it constitutes actual harm. To prove malpractice, you need an experienced malpractice lawyer. Your lawyer must prove that the actions taken by the medical professional have caused you harm or injury.
You must also prove the actions taken don’t meet the “standards of care” for their profession. The testimony of an expert witness typically provides that proof. Your attorney will know how to find an expert witness, sometimes by using expert witness directories, which can be found online.
According to The Knowles Group, there are two basic types of expert witnesses. The first type is a medical witness who can clarify the standards of care that were not met. The second type is an economic witness who will explain the financial impact of the injuries you have sustained. To testify, each witness must undergo an expert witness certification, where they must prove their qualifications as a witness.
Medical malpractice is one of the primary areas in law in which aspiring attorneys can study. Most often, a medical malpractice attorney would take on doctors or other medical professionals and their organizations, such as a hospital or a practice, in the name of a client. In order to be a legitimate medical malpractice case, the client and medical malpractice attorney need to prove that the medical professional in question made a serious error due to negligence.
The errors that medical malpractice usually covers are ones that permanently impact the victims of malpractice. They often have to deal with the physical and emotional consequences of the error a medical professional caused for the rest of their lives. Because of this huge impact, medical malpractice can be a complicated area of law. If you’re trying to determine whether you or a loved one have a medical malpractice case or if you’re an aspiring medical malpractice attorney, you should know everything there is about this area of law. Let’s dive into this informative guide on all things medical malpractice.
What Qualifies as Medical Malpractice?
There are a few key factors that a medical malpractice attorney must demonstrate are true when they are pursuing a medical malpractice case. Without fulfilling these basic requirements, the attorney likely won’t win a medical malpractice case and the court will instead side with the medical professional.
- A doctor-patient relationship existed
The first thing you must prove is there a doctor-patient relationship existed. In basic terms, this means that the client hired the doctor and the doctor agreed to be hired. This first requirement is meant to prevent cases of hearsay, such as a client overhearing a doctor give advice at a cocktail party and then blaming that doctor for the unofficial advice failing. In general, the doctor-patient relationship is easy to prove. If a doctor began seeing a patient and giving them medical attention to treat their ailment, the relationship existed. The trickiest situation that comes up with doctor-patient relationships is usually when a consulting physician did not treat a patient directly. - The doctor was negligent
The second element a medical malpractice attorney must prove is that the doctor was negligent. A patient who was simply unhappy with their healthcare services or the service’s results doesn’t necessarily have grounds for medical malpractice. There must be negligence in connection with the doctor’s diagnosis and/or treatment. To successfully sue, an attorney must be able to show that the doctor in question caused the patient harm in a way that a competent doctor under the same set of circumstances would not have. Typically the question of whether the doctor was “reasonably skillful and careful” is the crux of any medical malpractice claim. To prove that a doctor was not, the attorney will typically present a medical expert to discuss the medical standard of care for a certain ailment and demonstrate that the doctor deviated from that standard. - The doctor’s negligence resulted in the injury
The third requirement of a medical malpractice case is that the negligence in question directly caused the patient harm. This is important to prove because many malpractice cases involve patients who already had illnesses or injuries and there is a question of whether the doctor’s actions actually caused the harm, even if the actions were negligent. For example, a patient with cancer who died could have worked with a doctor who was negligent in their treatment, but it would be very difficult to prove that the doctor’s negligence caused the patient’s death rather than the cancer. Having an objective medical expert is also essential in proving this requirement, as they can speak to whether the doctor’s negligence caused the injury. - The injury led to certain damages
A patient can only sue a medical professional for malpractice if they can prove that they suffered harm, even if it is proven that the doctor caused wounds or didn’t perform to the expected standards in their field. There are different types of harm a patient could sue for, including physical pain, mental distress, additional medical bills, and loss of work or earning capacity.
While a patient could theoretically prove many of these points on their own, having legal representation is essential. Healthcare providers are much more likely to take a claim seriously and offer a generous settlement when a patient has a medical malpractice attorney. If you’re a patient looking for the right lawyer, contact a personal injury law firm that specializes in medical malpractice. A personal injury attorney may know the basics of medical malpractice, but personal injury is a broad field of law that also covers areas such as car accidents and product liability. By working with an attorney specializing in medical malpractice, you can work with an expert who knows exactly how to prove that you have a case.
Types of Medical Malpractice
Now that you’re up-to-date on the requirements for a medical malpractice case, the next thing to know is what types of medical malpractice are out there. Even if you think a case has hit all of the requirements above, it can be hard to know whether or not a certain case even qualifies as malpractice. These are some of the most common types of medical malpractice.
- Misdiagnosis
Misdiagnosis applies to many malpractice cases. As a diagnosis is what a doctor will base their entire treatment on, an incorrect one is usually the root cause of the injury or harm a patient suffers. Misdiagnosis applies to doctors who incorrectly say that a patient has no discernible illness as well as doctors who diagnose a patient with a condition they do not actually have. The former prevents the patient from getting the treatment they need and the latter causes patients to receive a treatment they don’t need. Of course, in order to prove malpractice, an attorney must demonstrate that other doctors would have made the correct diagnosis under similar circumstances. If a doctor makes an incorrect diagnosis that other medical professionals would have also made, it likely won’t qualify as malpractice. - Delayed diagnosis
Similar to misdiagnosis, a delayed diagnosis occurs when a doctor makes an incorrect diagnosis at first but the patient does eventually receive the correct diagnosis. Even though the diagnosis was accurate in the end, the delay in diagnosis leaves room for the condition to become worse as the patient does not receive the treatment that they need. To qualify for delayed diagnosis, the doctor would have had to asses the patient less competently than other doctors would have. For instance, if you went to a 24/7 urgent care because you thought you had a broken bone and the doctor did not order an x-ray and instead just felt the injury and sent you home saying that you were fine, your injury could get worse. If you went back to seek further treatment and the doctor decided then to order an x-ray and accurately diagnosed you, this would be a delayed diagnosis. - Failure to treat
Another common form of medical malpractice occurs when a doctor arrives at the right diagnosis yet fails to recommend adequate treatment. This is known as failure to treat. These unfortunate situations end to happen when doctors are treating too many patients. As they attempt to juggle all of their patients, the doctor may not be as diligent as they need to be about treating everyone with the basic standard of care. In the name of time or convenience, the doctor may release a patient too soon, neglect to offer the proper follow-up care, or fail to refer them to a specialist, such as a chiropractor. - Surgical errors
This type of medical malpractice can have a major impact on the patient’s quality of life. In serious cases, it can even lead to death. Although a patient signs a consent form before going into surgery that acknowledges the risks of surgical complications or even death, it does not mean that a patient or their family cannot sue. A medical malpractice attorney would just have to prove that the surgeon performed part of or all of the surgery incorrectly and that other doctors would have been able to uphold the standard of care in the same situation. Common examples of surgical errors include performing unnecessary surgery or the incorrect procedure, damaging organs or nerves during surgery, using non-sterile equipment, administering the incorrect amount of anesthesia, or leaving medical equipment inside the patient. If a doctor fails to provide adequate care after surgery, the case could also fall under the category of the surgical error. - Birth injury
A particularly devastating type of medical malpractice, birth injuries are when harm occurs to a baby or mother that could have been prevented. There are different forms of birth injury malpractice. One form is if a pregnant woman seeks convenient medical care to ensure her health and that of her unborn baby, but the obstetrician’s prenatal care was inadequate. Another form is negligence during childbirth that lead to birth injuries to the mother or baby. Birth injuries have the potential to result in the need for costly lifelong medical care or even the death of the baby or mother. - Medical product liability
This type of medical malpractice doesn’t focus so much on the medical professional, but on the company that made a faulty medical device. When these devices have a poor design or aren’t tested properly before being used on the general public, they can injure the patients who do use them. For instance, IVC filters are meant to prevent blood clots, but some types of filters can break, travel through your bloodstream, and cause serious injury or death. In this case, a product directly caused harm to the patient’s health. Medical product liability can also apply when a patient’s medical condition gets worse because the product they are using doesn’t provide the promised benefits. When the product’s manufacturer knew or reasonably should have known of the defect, they are then liable to the victims.
Of course, there are many other forms of medical malpractice. If you’re unsure whether a certain case falls under one of these categories or is in another category not on this list, be sure to contact an experienced medical malpractice attorney. They will be able to advise you whether you have a case and under which category it falls.
Stages of a Medical Malpractice Case
As in any other type of legal case, a medical malpractice case has to go through several steps before all is said and done. The first step, as we’ve already discussed in this article, is to contact an experienced medical malpractice attorney. Without a professional lawyer, a case won’t go very far. During a consultation with the attorney, the client will provide all of the details and facts of the case so that the attorney can use all of the requirements mentioned above to determine whether they have a solid claim. Even if a client is not completely sure that they have a case or they feel embarrassed when they think about the situation, talking with an attorney is important. The lawyer can assure the client that it was indeed malpractice. Alternatively, if the case does not meet the requirements, a lawyer can let the client know that pursuing a claim would not be successful and would only cost them their time and money.
The next step in a case is the investigation. During this phase, the medical malpractice attorney will review all of the patient’s records and documents to determine what went wrong. For instance, if a person was enrolled in senior care and is filing a claim against the medical professionals at their facility, the attorney will gather the records of their stay at the care center as well as the specific medical records from doctor or nurse in question. This stage also involves the attorney contacting one or more medical experts who can speak to the degree of negligence in the case. The attorney can then file a case in court.
Depending on the state and specific case, the attorney will then move through the stages of litigation. These stages can include tribunal, discovery, and trial. However, an attorney will usually try to get a fair settlement rather than go to trial. If it does go to trial, each side will present its case, experts on both sides will testify, and a jury will decide whether the doctor acted negligently and that negligence cause the patient’s injuries.
Medical malpractice is a serious area of law. It can change a patient’s life. By being informed on types of medical malpractice and working with the right medical malpractice attorney, a client can achieve the resolution they need.