The Basics of Medical Malpractice

about medical malpractice

Having to undergo a medical procedure or receive medical treatment can be a nerve-racking experience, and there is always an expectation that the doctors, nurses, staff, and facilities involved will render the appropriate care. Medical malpractice occurs when a medical practitioner deviates from the appropriate standard of care in treating a patient, which causes injury or damages to the patient. There is, however, a lot more to a viable medical malpractice claim than simply a mistake on the part of a health care professional or facility, as explained below.

Elements of a Medical Malpractice Claim

According to the Journal of the American Medical Association, medical malpractice is the third leading cause of death in the U.S.—right behind heart disease and cancer. The common types of medical malpractice include failing to diagnose an illness, providing improper treatment or administering the proper treatment improperly, and failing to warn patients of known risks of a procedure or course of treatment, also known as the duty to provide informed consent.

The rules and regulations about medical malpractice, including statute of limitations, vary from state to state. There are some general principles that apply to most medical malpractice cases. Generally, a person who alleges medical malpractice must prove three elements:

1. A duty of care was owed by the medical practitioner. Healthcare providers owe a duty of care to their patients as the result of the provider-patient relationship. This element is generally not an issue if you were treated by a medical practitioner who is the subject of the claim. Questions regarding the existence of whether a duty of care was owed usually arise if only advice is given, or if a physician is consulted but does not actually treat the patient.

2. The medical practitioner breached the duty of care. This occurs when the medical practitioner did not care for or treat the patient with the skill, care, or speed that a reasonable medical practitioner would have done under the same or similar circumstances. In this regard, expert opinions are often a crucial feature of the patient's case, and only in a very limited number of circumstances, is expert testimony not required.

3. The patient suffered a compensable injury as the result of the breach of duty. It is not enough that the medical practitioner made a mistake in the treatment. Without damage or injury, there is no basis for a medical malpractice claim. Proof of injury can include the physical effects of the treatment, as well as emotional effects. The patient must not only prove that he or she suffered a compensable injury, but also that the medical practitioner caused the injury.

Other Considerations with Medical Malpractice Claims

The burden of proving the elements of a medical malpractice claim rests with the patient asserting the claim. In most states, you must bring a medical malpractice claim anywhere from six months to two years after learning of the improper treatment. Some states also require that the patient give the doctor notice of the malpractice claim describing the issue before filing suit.

If you think you may be the victim of medical malpractice, it is important to seek help. Some patients choose not to pursue valid medical malpractice claims because they may fear other doctors will refuse to treat them because of their claim, or that their medical costs will increase. Others choose not to pursue valid medical malpractice claims because of the perceived costs associated with litigation. Patients should know that most attorneys offer free initial consultations for medical malpractice claims, and if an attorney takes your case, he or she may do so on contingency, meaning the attorney will not require any payment unless the case is resolved successfully (i.e. through settlement or a jury award).

Medical malpractice claims are highly regulated by a complex set of rules, which vary considerably from state to state. It is essential to get advice or representation from an attorney in evaluating whether you have a viable medical malpractice claim. To find a medical malpractice lawyer, quickly post a short summary of your legal needs on Legal Services Link for free and let the perfect attorney come to you!

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Posted - 12/18/2016