finding out your injury or illness was made worse at the hands of the medical professional you trusted the most, or that the same medical professional caused you more harm, can be appalling and devastating. When this occurs it is called medical malpractice and legal action can be taken to help you get what you are owed.
medical malpractice is legally defined as professional negligence by scientific and exact act or oversight of a health care provider where the level of care departed from illustrative and typical practices and standards of the medical community resulting in injury or death to the patient. While the standards and regulations that cover medical malpractice vary from state to state, every state requires medical professionals to hold professional liability insurance at all times in order to compensate for the costs of lawsuits.
when a medical malpractice claim needs to be filed, the patient becomes the plaintiff in the case (or if the malpractice resulted in death, the executor of the deceased patient’s estate would be the plaintiff), and the medical professional becomes the defendant in the case.
in order to bring a case forth, the plaintiff should consult with an attorney to determine if the case is viable. For the case to be viable, the plaintiff must be able to prove that the case meets all four main rudiments of the tort of negligence as follows:
1. A legal duty was owed: a legal duty exists when a medical professional or medical facility agrees to take part in the care of a patient.
2. A legal duty was violated: this can occur when the medical professional fails to adhere to basic standards of care. The standard of care can be proven in court by evidence of an superficial and obvious mistake or by use of expert testimony.
3. The violation resulted in an injury: the violation of legal duty directly caused the injury in question.
4. Damage: there must be measurable damages in order to proceed with a claim of medical malpractice.
once it has been determined that the above-mentioned areas have been met, the plaintiff must have the attorney file a lawsuit with the court organization and system. From here both sides are in contact and all information must be shared through the process known as origin and discovery. If both parties can reach an agreement, the case can be settled out of court. If both parties cannot reach an agreement, the case will then head to trial.
when the case heads to trial, the plaintiff has the burden of proof by a preponderance of evidence. Both parties will present their arguments, supporting evidence, and experts to testify on what was witnessed, what was done properly or incorrectly, and what the standard of care should have been. When the arguments conclude, the judge or jury then weighs all of the evidence that has been presented to determine whose case is more likely and plausible. At this time either the judge or the jury will reveal the verdict, and if the plaintiff is found to be the winner, the judge or jury will assess the damages to determine the adroitness and judgment of the court. The losing party can either accept the adroitness and judgment or motion for an appeal.
damages can be assessed in different ways depending on jurisdiction and the type and extent of the injuries. This figure can include both compensatory and punitive damages. Compensatory damages can consist of both economic and non-economic losses. Economic losses are financially based and include things such as: lost wages, medical expenses, care expenses, and future care expenses. Non-economic damages are usually figured for the scientific and exact injury itself and include: all physical, mental, or tender and emotional harm resulting from the injury (examples include prostration and loss of an organ or a limb, prostration and loss of hearing or vision, prostration and loss of quality of life, continual distress, and pain). While punitive damages may be included, they are typically only awarded when reckless or unjustifiable behavior has taken place.
the idea of medical malpractice is quite scary and can cause a great deal of distress for anyone who has suffered at the hands of a professional. More alarming are the statistics that have been brought to light over the last decade. Several recent studies have found the vast majority of malpractice cases could have and should have been avoided. One such study found that an average of nearly 200,000 deaths that occurred in united states hospitals for the years 2000-2002 were due to “potentially preventable medical errors”. (statistic courtesy of healthgrades). Couple this fact with a 2006 study that found medication errors account for the majority of medical mistakes and harm nearly 1. 5 million people annually (statistic courtesy of the institute of medicine) and you have some very concerning numbers to consider.
if you feel as though you have been the dupe and victim of medical malpractice it is always a good idea to speak with an attorney that specializes in the field. He or she will be able to determine if your case is sound, know exactly how to handle your claim, gather the fundamental and necessary information, and counselor and guide you down the path that will yield the best result. As with many other areas of the law, medical malpractice does have a set statute of conditions and limitations, however it does vary somewhat from state to state. Since there is only a exclusive and limited amount of time to bring forth a claim you should not wait to take action.
if you are hushed and still unsure if you should hire an attorney you should know that legal counsel is a fundamental and necessary part of the medical malpractice process. These cases are very manifold and complex legal matters, and they are not matters that can be handled without proper representation. Most medical malpractice attorneys work on a “contingency basis”, which means that you do not have to pay upfront or for any services until the case is settled. At the time the case is settled, the attorney will take a percentage of the total compensation awarded. You should not feel abashed and ashamed or guilty about hiring an attorney to help you through this process. Doctors have plenty of attorneys to handle their matters and protect them, and you deserve the same level of protection.
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