Between doctors and patients, there is an understanding of trust. Patients rely on their physicians to provide them with the right treatment at the right time. Physicians, in turn, are under oath to always keep the patient’s health and safety as a top priority. When these obligations are being properly fulfilled, there is a balance to the patient-doctor relationship.
There are instances, however, when these obligations are not properly fulfilled. When a patient is harmed at the hands of their doctor or medical facility, it is crucially important that those who are at fault are held responsible.
Accountability in the medical field is one of the only ways the standards of medical practice can be maintained. Doctors, nurses, and medical facilities must know that there are consequences when they do not properly fulfill their obligations to their patients.
When patients are harmed, attorneys can assist those individuals through legal means.
A malpractice lawsuit is designed to help people hold medical professionals accountable. Many people are discouraged from pursuing their malpractice lawsuits, though, because they are unsure of where to start. An attorney trained in this type of legal action can help you navigate these often confusing waters.
You may be wondering if it is difficult to prove medical malpractice. This guide will help to answer many of the questions you may have concerning this type of legal action.
Medical Malpractice Defined
Medical malpractice is often defined as a medical error, negligence, or omission.
Medical error- A medical error is an incident in which a doctor, nurse, or medical facility provides the wrong type of treatment or diagnosis.
Medical negligence- Medical negligence is considered any time a patient is not treated appropriately per medical standards. Medical negligence can encompass a lot of things, including neglect and abuse.
Medical omission- Medical omission is defined as something crucial being left out of the treatment of a patient. This could include the leaving off of medications, treatments, or necessary care.
It is important to note that a medical professional is not responsible or held liable for every instance of harm that may come to a patient. There is, however, a legal responsibility when the patient is harmed or injured if the medical professional strays away from the standards of care that would normally be expected. Medical laws are very detailed as to what the standard of care is in different situations.
There are many different types of factors that can be involved in a patient being harmed or injured. It is important to remember that the foundation of a medical malpractice suit is to be able to prove that the medical professional or the medical facility was specifically at fault for the injury.
This is why it is helpful to bring in the help of a legal professional. A medical malpractice lawyer will be able to sift through all of the details and information involved in your case to help you better understand if you have a viable medical malpractice case. Let’s look at some of the factors that are considered to prove malpractice.
Failure To Provide Proper Standard of Care
Medical laws require that medical professionals and medical facilities follow very specific standards of care. These standards are outlined and detailed for different types of care, different types of treatment, and different types of situations.
Injuries Resulting From Negligence
If a patient claims that a medical professional was negligent in their care, but there was no apparent harm or injury, then there will be no proof for a medical malpractice case. There are instances in which a doctor, nurse, or medical facility is in fact guilty of negligence. However, if you were not harmed by those actions, you will not be able to pursue a medical malpractice lawsuit.
Injury With Damaging Consequences
It is imperative in a medical malpractice lawsuit that a patient is able to show that their particular injury has in fact had damaging consequences on their life. An attorney can help you to better understand what considerable damage entails.
Considerable damage could include but is not limited to:
- Ongoing hardship (physical or financial)
- Chronic pain
- Significant loss of income
- Disability (whether temporary or permanent)
If you are considering pursuing a medical malpractice lawsuit, you should be aware that being dissatisfied with your medical treatment is not usually the legal grounds for a viable medical malpractice lawsuit. You and your attorney must be able to prove that you were harmed or injured in such a way that it caused considerable damage to your health and life.
Examples of Errors and Malpractice
To better understand how to prove a medical malpractice suit, it is good to be acquainted with the types of errors and malpractice. Errors and malpractice can include but are not limited to:
- Failure to diagnose
- Unnecessary surgery
- Incorrect surgery
- Premature discharge from medical care
- Failure to order testing
- Failure to order appropriate testing
- Failure to act upon test results.
- Failure to follow up
- Prescribing the wrong dosage
- Prescribing the wrong medication
- Foreign objects left in patient’s body following surgery
- Surgery performed on the wrong part of the body
- The experience of ongoing pain following surgery
- Fatal infections developing while staying in the hospital.
- The development of bedsores
Please note that this is only a partial list of potential errors that could be grounds for a medical malpractice lawsuit. You will need to review the details of your particular case with your attorney. There can be many other types of medical errors that could be grounds for malpractice.
It is also important to note that other types of incidents can also be considered malpractice or negligence. This could include incidents such as fires, infectious outbreaks, or even incidents of suicide when patients were supposed to be under watch.
Understanding Informed Consent
Informed consent is also a very important aspect of understanding malpractice cases. Informed consent is the practice of informing a patient of what types of treatments and medication will be administered. It is vitally important that doctors, nurses, and medical facilities follow all protocols concerning informed consent.
If a medical professional fails to provide adequate information to the patient, so that the patient can make an informed decision, it can be grounds for malpractice. If the medical professional or the medical facility does not get this informed consent and cannot produce documentation of informed consent, they can be held liable if harm results from that treatment or medication. This also includes informing the patient of the risk percentages for all risks involved in any procedure or treatment.
Malpractice Lawsuit Terms
Any type of legal action can be stressful for the parties involved. A malpractice lawsuit can be especially stressful because, in most cases, the individual will also be dealing with health issues as a result of the malpractice. This is yet another reason why it is beneficial to enlist the help of a knowledgeable malpractice attorney. This professional will be right by your side every step of the way to ensure that you are moving through this process with the least amount of stress and confusion.
Let’s look at some of the basic details of a malpractice legal action.
The plaintiff in this type of case will be defined as the person who is filing the complaint. This is usually the patient, themselves, but in some cases, it can also be a designated person. A designated person acts on behalf of the patient. In cases in which the patient has died, the plaintiff will be the executor or administrator of their estate.
The defendant in a malpractice case will be the one who is being sued. In medical malpractice cases, it is usually a health care professional. The defendant can be a doctor, nurse, nurse tech, surgical assistant, lab technician, medical facility, any employee of a medical facility. It is important to remember that even someone who was only following orders given by another medical professional in higher rank than themselves, can be held liable for malpractice if it can be proved that their actions contributed to a medical injury.
The prevailing party is defined as the party in the case which wins. The losing party will be the party that loses the lawsuit.
Elements of the Malpractice Case
The details of a malpractice case will vary greatly from one plaintiff to another. However, there are some basic elements that will be common to all cases.
In a malpractice case the plaintiff, with the help of an attorney, needs to be able to prove the following elements:
- A duty was owed to the patient by the health care professional or facility. This means that the plaintiff was seeking medical care from the defendant and that the defendant had agreed to provide this care.
- This duty was breached. The duty is considered breached if the health care professionals or the medical facility fails to provide the expected standard of care as outlined by law.
- This proven breach then resulted in injury to the plaintiff.
- This proven injury resulted in considerable damage to the plaintiff. This damage can be defined as physical, emotional, or financial.
How The Process Works
Before pursuing a medical malpractice lawsuit, you will want to know what is involved in that process. This process is going to affect your life in dramatic ways. You will be investing both time and money in this process, so it is good to fully understand all that you are getting into. Remember, a malpractice attorney will be able to give you even more detailed information concerning this process. Here is a basic outline of how a medical malpractice case proceeds.
The first step in the legal process will be for the plaintiff or their attorney to file the lawsuit in court. There is a great deal of paperwork involved in this step. Documents must be filed in a very specific way and in a very specific timeline. A knowledgeable attorney will know how to take all of these steps on your behalf. Hiring an attorney as your legal representative will streamline the process and relieve you from a great deal of stress.
The next step is called discovery. During the discovery process, the plaintiff and the defendant will share information with one another. This is a very important part of this legal process. The information being shared can include medical records, documents, depositions, and interrogatories. Both sides are required by law to disclose all information and any additional information that is requested.
Following the discovery phase, there is a chance that the matter can be settled out of court. This happens if both parties come to an agreement concerning faults and compensation. If the matter can be settled out of court, you will not be required to proceed to a trial.
If the parties cannot settle out of court, if both parties feel that they are in the right and the defendant will not admit fault or agree on compensation, then the case will proceed to trial.
Once the case has gone to trial, it will be the responsibility of the plaintiff to prove with compelling evidence that the defendant was indeed at fault, the duty of care was breached, and that breach caused injury and that the injury caused considerable damage to the plaintiff.
It is very important to remember that in our judicial system the burden of proof is on the plaintiff. The defendant is considered innocent until proven guilty.
During the trial process, both sides will use experts to establish what the standard of care was in this situation. This is a very important part of a malpractice suit. Both sides must agree on what the standard was in the first place before the judge can determine if that standard was breached.
After this, both parties will present their evidence to the judge. It is the responsibility of the judge to evaluate all of the evidence objectively. It is then the duty of the judge to decide who will be the prevailing party.
When the judge has made a decision, a verdict will be passed. This verdict declares who is the prevailing party. If the plaintiff is determined to be the prevailing party, further decisions will need to be made by the judge. The judge will need to declare what the damages will be for the plaintiff.
At this point, the losing party can ask for a new trial if they wish.
If the plaintiff wins but wishes for a larger settlement than what was awarded, they may request an additur. This means that they can request that a further assessment be done of the damages and that a larger settlement be considered.
Damages That Can Be Awarded
The point of a malpractice lawsuit is that the guilty party be held responsible and also that the plaintiff is compensated for their damages. Instances of malpractice will have a detrimental effect on an individual’s physical health, emotional health, and in many cases on their finances. Finances can be greatly affected by medical malpractice. If an individual is permanently or temporarily disabled, this will create a huge financial burden. If further medical treatments are required to treat the physical damage that was done, this will create additional medical bills.
This is why damages are awarded to the plaintiff if they win their malpractice lawsuit. Let’s look at the types of damages that could be awarded.
Compensatory damage-This term refers to economic damage. This could include loss of income, lost capacity to earn income, medical expenses, and life care expenses. A good malpractice attorney will access both past and future losses.
Under compensatory damages, non-economic damages can also be assessed. These can include both psychological as well as physical harm. This might include injuries that result in losing a limb or losing vision. Within this category, you can also assess chronic pain and emotional upheaval.
Punitive damages- These types of damages are usually only considered when the defendant is guilty of malicious or willful misconduct. This would be included in addition as a punishment for the guilty party.
If you believe that you or a loved one have been a victim of medical malpractice, pursuing a malpractice lawsuit will give you the chance to find justice. You should be aware, though, that there are a few other things you should consider before pursuing your case.
Expense- A lawsuit can be an expensive endeavor. Be sure to talk about these expenses upfront with an attorney. You need to know what exactly you are taking on when you pursue your case. A good attorney will be honest and straightforward with you about expenses.
Personal investment- In addition to any financial expense involved, you should also know that there will be a significant personal investment on your part as well. A malpractice lawsuit, or any type of lawsuit for that matter, can take a toll on your mental health. You need to be aware of this going in so that you can take the proper steps to protect your mental health during the process.