Medical malpractice is a special kind of personal injury case that is brought against hospitals, nurses, doctors, EMTs, or other medical care professionals. It is a form of professional malpractice (just like attorney malpractice is a form of professional malpractice against lawyers) that applies only when an individual is injured in the course of receiving some type of medical treatment or medical care. Those who suffer from a medical malpractice injury may be able to hold the medical care provider(s) responsible for that injury liable under the special rules that apply for this type of professional negligence.
A victim who has been injured as a result of negligence on the part of a health care provider may only hold the provider responsible if that patient can prove the four essential elements of a medical malpractice claim. These four elements are as follows:
If any of these four elements are not present, then a plaintiff may not make a malpractice claim. Furthermore, like in all personal injury cases, the burden is on the plaintiff to prove his or her case. This means a patient must prove the doctor or other professional was liable; a doctor does not have to prove he wasn't. The standard of proof that is used to assess whether a plaintiff has proven his or her case is a preponderance of the evidence standard, which means that the plaintiff has to prove that more likely than not all four of the elements above exist.
A plaintiff can prove that a health care provider had a duty to provide him/her with competent medical care if there is some relationship between the health care provider and the patient. For instance:
It is usually easy to prove this duty, but it must exist for a malpractice case to be brought. For example, a doctor at a dinner party can't be held liable for medical malpractice to intervene when someone three tables over was choking, since the doctor owed no legal duty to that person.
Because medical malpractice is a form of professional malpractice, the doctor's or health care provider's duty is that of a reasonable professional. This means that doctors, nurse and EMTS, for example, are expected to provide a level of care that is equally as competent as another doctor/professional in their position would have provided given their education and experience. Hospitals and nursing homes are expected to have policies and practices in place that any reasonable facility would and to provide an environment to patients that is reasonably safe. All of this is judged based on the hypothetical "reasonable professional" standard, and usually expert witnesses are required to tell the jury just what reasonable is.
Once the duty has been established, the next thing that a plaintiff must do is demonstrate that the doctor or health care professional breached that duty. In other words, something less reasonable, less careful, and less skilled must have occurred. This can be almost anything, but some of the most common categories of breach include the following:
If a doctor fails to diagnose a condition that he/she reasonably should have diagnosed given the symptoms you reported and/or the results of the tests performed, then the doctor can be held liable for any problems arising from the misdiagnosis or delayed treatment.
If a doctor, nurse or health care professional provides you with care but doesn't do it right, then he/she can be held responsible. This can range from leaving an instrument inside you during surgery to not performing CPR with a reasonable degree of skill to amputating the wrong foot to any other type of medical procedure performed with a lack of reasonable skill.
This is common in nursing homes cases. Nursing home staff, for example, might neglect to properly feed a patient, leading to malnourishment. The nursing home might not turn a bedridden patient to relieve bedsores, leading to pressure ulcers. The nursing home might not make sure the patient is taking his or her medication, leading to severe consequences or even death.
Medication errors may include a doctor prescribing the wrong dosage of medication or not paying attention to drug reactions that he/she should have known about. If a nurse administers the wrong dose or if a medication is otherwise not given properly, then this can be a breach of duty.
If a hospital or nursing home fails to take reasonable precautions to ensure a sterile or at least clean environment, a number of problems can occur. Hospital acquired MRSA, pneumonia or other bacterial or viral outbreaks are all common results of negligent attitudes or procedures towards cleanliness.
These are just a few examples of potential breaches that can lead to a malpractice suit. Again, the burden falls on the plaintiff to prove negligence, and medical or expert testimony is usually required to do so.
Causation can be the hardest thing for a plaintiff to prove. Essentially, the plaintiff has to show that the negligence was the but for, or proximate and direct cause of some kind of damage and injury. This gets tricky because doctors or hospitals may argue that the injury would have happened and would have been the same even if the negligence had never occurred. For example, a doctor who fails to diagnose cancer can argue that the cancer was deadly and that the patient would have died no matter what he did, even if he had diagnosed the condition earlier. The hospital could argue that the plaintiff just had a weakened immune system and would have gotten pneumonia no matter how careful they were.
If the health care provider is successful in arguing that the result would have been exactly the same as it would have been even if more care had been taken, then a plaintiff cannot recover damages even if negligence happened. After all, damages have to be passed on something, and if there was no harm done by the negligence, then what is there to compensate the plaintiff for? If a plaintiff's condition worsens, however, the health care provider can be responsible for exacerbating the condition and can be responsible with any additional costs caused by his/her negligence.
The plaintiff should try to collect as much evidence as possible as to the cause of his or her injuries, which should include medical records from documenting the suspected cause. Expert witnesses who are willing to testify that the injuries resulted from the negligence are also absolutely essential here.
The last thing that a patient has to prove in order to be able to recover compensation for medical malpractice is that the harm caused by the practitioner's negligence actually caused some kind of damages. Damages include the following:
It is important to note that tort reform efforts have been targeted at limiting and restricting medical malpractice damages, resulting in damage caps in many states. Those who are a proponent of tort reform argue that costs associated with health care will be lower if medical malpractice damages are limited, since doctors will not fear such large lawsuits and will thus be able to purchase more affordable medical malpractice insurance. The cost of medical malpractice insurance (which can be prohibitively high, especially in fields like obstetrics) is theoretically passed on to consumers, so the belief is that this savings should trickle down.
It is also important to note that many medical malpractice cases end up settling outside of court, as long as the health care provider accepts fault. His or her medical malpractice insurance carrier will pay for a set amount of damages to the plaintiff in exchange for that potential plaintiff giving up any and all future rights to sue.
If you believe you have been the victim of medical malpractice, it is in your best interests to speak with a qualified and experienced malpractice attorney. Causation and proving malpractice can be very complicated, and a lawyer can help you to gather the right evidence and to find the necessary expert witnesses so that you are able to be fairly compensated for any harm that occurred as a result of a professional not being careful when managing your health.