Defining medical malpractice Medical malpractice is an act or omission by a health care provider which deviates from accepted standards of practice and which causes injury to the patient. In other words, medical malpractice is professional negligence (or worse) by a healthcare provider that causes an injury. In order to succeed with a claim of medical malpractice, the patient, or a legally designated party on behalf of the patient, must establish all four elements of the tort of negligence:
- A duty was owed – a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
- A duty was breached – the provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious errors.
- The breach of this duty caused an injury – it must be shown that there was an injury and that the breach of duty caused it.
- The injury resulted in damages (physical, emotional or financial) to the patient.
Types of medical malpractice
Medical malpractice can take many forms. The following are some of the ways a medical care provider can commit medical malpractice. It can be a misdiagnosis of a disease – that is, diagnosing a condition as one disease and treating it accordingly when in fact it was another disease. The misdiagnosis leads to mistreatment, which can lead to disability or even death. Medical malpractice can be a missed diagnosis, resulting in non-treatment or delay of a treatment, which, if begun earlier, would have been of significant benefit to the patient. It can be prescribing an inappropriate medication that causes harm or death to the patient. It can be negligent or inappropriate care while a person is a patient in a hospital. It can be abusive treatment while a person is a patient in a nursing home.
Who can be held responsible?
A medical care provider can be a doctor, dentist, psychiatrist, doctor’s assistant, nurse – virtually anyone involved in providing care to the patient. Some court decisions have made it clear that “following orders” may not protect nurses and other non-physicians from liability when committing negligent acts. In some cases, under vicarious liability or corporate negligence theories, claims may be successfully brought against hospitals, clinics, managed care organizations or medical corporations for the acts of their employees.
Do not delay – get the records
When medical malpractice does occur, the results can be devastating both to an individual and to the family. The most important thing to do if you think you have a case of medical malpractice is to obtain all of your medical records that may in any way be related to the potential malpractice. This is not always easy. You may run into delays and excuses. You must be very persistent.
Getting the records is important because they likely will contain evidence to prove or at least support your case. Sates have statutes of limitations, and in some states the statutory limitation is one year. This means that a lawsuit for medical malpractice must be filed by a medical malpractice attorney within one year from the date you knew, or had reason to know, that you suffered injury or damage as the result of malpractice. This means that you cannot waste any time if you suspect medical malpractice.
10-09-2008 until 11-09-2030
