Medical malpractice occurs when a health care provider negligently provides care to a patient. Although this definition seems straightforward, the concept of medical malpractice is surrounded by many issues that complicate the application of the concept to real-life facts.
Medical malpractice information can be difficult to come by. Medical malpractice lawsuits can involve huge damages. As a result, your doctor and health insurer might suddenly become very tight-lipped with any medical malpractice information pertaining to your care. Often, it will be necessary to hire a lawyer and file a lawsuit to get information from your health care provider that may confirm whether your doctor made a mistake.
Here is some medical malpractice information and tips for patients who suspect that their health care provider has made an actionable mistake:
Proving Medical Malpractice
Medical malpractice is the application of negligence principles to health care providers. Thus, the elements of medical malpractice are the same as any other negligence lawsuit filed by personal injury lawyers. A negligence claim requires proof of:
- Duty: The person accused of negligence must owe a duty to the person harmed. This duty arises from the doctor-patient relationship. For example, a doctor riding the same train as you does not owe you a duty to assist you if you have a heart attack during your commute. However, once a doctor begins diagnosis and treatment the doctor owes you a duty to provide reasonable care under the circumstances.
- Breach of duty: The person harmed must prove the duty was breached. Specifically, the doctor’s care must be unreasonable in some respect to constitute medical malpractice. If the care is reasonable, but the outcome is negative, the doctor did not commit medical malpractice. For example, suppose a doctor reasonably and correctly provided skin cancer treatment by operating on a lesion. Even if the cancer recurs, the doctor has not committed medical malpractice.
- Causation: The breach of duty must be the cause of injury to the person harmed. The doctor’s actions must be both the cause-in-fact and the proximate cause of the injury. Cause-in-fact refers to the chain of events that cause the injury. A drug prescribed for a thyroid condition might be the cause-in-fact of a heart attack if blood clots are a side effect of the drug. Proximate cause refers to the foreseeability of the injury. Prescribing the drug is a proximate cause of the heart attack if the doctor was aware that the patient was susceptible to blood clots or could have tested the patient before prescribing the drug.
- Damage: The malpractice must cause damage. Thus, exposing a patient to potential side effects might not be sufficient for a medical malpractice claim. Instead, the patient must actually suffer from side effects to succeed in a medical malpractice lawsuit.
Medical Malpractice Applies to Most Health Care Providers
When you meet with medical negligence attorneys for medical malpractice information, you will find out that medical malpractice can be applied broadly. Some of the people and entities that can commit medical malpractice include:
- Doctors: As the person primarily responsible for your care, many of the doctor’s decisions and actions can result in a malpractice claim. Any type of doctor can commit medical malpractice, from your primary care physician to your eye doctor.
- Nurses: When you receive medical treatment, you will likely have more contact with nurses than with your doctor. Like doctors, nurses can also commit medical malpractice if their care is unreasonable under the circumstances.
- Therapists: If a physical therapist or mental health professional provides care that is unreasonable under the circumstances, the filing could form the basis of a medical malpractice claim. This is true even if the therapist is not a doctor.
- Pharmacists: When a pharmacist mixes up drugs or fails to warn you about side effects, the pharmacist might have committed medical malpractice.
- Hospitals: If a hospital’s policies or failure to supervise/train its staff leads to an injury, the hospital can be sued for medical malpractice.
- Medical laboratories: Labs process samples, perform tests, and interpret results. When a medical lab errs in any of these steps, it might be responsible for medical malpractice.
- Dentists: Dentists provide medical care that can be the subject of a medical malpractice claim. If dental care is unreasonable under the circumstances and causes injury, you can probably file a lawsuit for medical malpractice.
Types of Medical Malpractice
Any form of negligence qualifies as medical malpractice. However, when seeking out medical malpractice information, you will find that most mistakes fall into three common categories:
- Diagnosis error: A diagnosis error occurs when a health care provider makes an incorrect diagnosis or fails to diagnose a medical condition. For example, if an optical care provider fails to diagnose a detached retina and the patient loses eyesight as a result, the provider committed malpractice. Diagnostic errors are also committed by imaging labs that miss tumors or misdiagnose the size or location of tumors.
- Treatment error: Treatment errors occur when the provider makes an error when prescribing a course of treatment, failing to prescribe a course of treatment, or treating the patient. Examples of treatment errors include operating on the wrong limb or prescribing the wrong drugs for the patient’s condition.
- Communication error: A provider commits a communication error when the provider fails to provide information necessary for the patient or the patient’s designee to make an informed decision. For example, a doctor who fails to tell a patient about a treatment option or mischaracterizes the benefits or drawbacks of a treatment might have committed a communication error.
Other strange circumstances might give rise to a claim for medical malpractice that does not fit into these common categories. However, as long as the elements of negligence are met, the act or omission by a medical provider still qualifies as medical malpractice.
Medical Malpractice Lawyers
Finding a medical malpractice lawyer is usually fairly straightforward. Some lawyers limit their practices to medical malpractice. However, for many lawyers, medical malpractice is usually only part of a broader personal injury practice.
Personal injury lawyers handle tort claims — civil actions that are intended to resolve responsibility for actions that injure or damage another person. In addition to medical malpractice, other tort claims handled by personal injury lawyers include:
- Auto accidents: The most common tort claim occurs when a driver’s negligence results in an accident that injures another motorist, bicyclist, or pedestrian.
- Premises liability: Another common tort claim occurs when someone is injured while on someone else’s property. These claims are also referred to as slip-and-fall accidents.
- Products liability: When a product designer or manufacturer places a defective product into the stream of commerce, anyone injured by the product can file a product liability claim.
- Negligence: Any form of negligence can result in an injury. For example, a senior care facility that fails to secure its doors and allows a patient with dementia to wander off and become injured might be responsible for the injury.
- Wrongful death: When negligence leads to death, the negligent person or business might be liable for wrongful death. The main distinguishing factor in a wrongful death claim is that it is filed by a wrongful death lawyer on behalf of the deceased person’s survivors.
- Intentional torts: Deliberate actions that result in an injury or death to a person are a form of personal injury. For example, a sexual assault, bar fight, or kidnapping might result in both a criminal case and a personal injury lawsuit.
- Defamation: Defamation occurs when a false assertion of fact results in reputational damage. The widespread use of social media platforms to bully or harass others has led to an explosion in defamation claims.
Thus, in addition to providing medical malpractice information, your personal injury lawyer can also offer opinions about many other forms of injury that you have suffered and determine if any of those might also provide the basis for a lawsuit.
Choosing a Medical Malpractice Lawyer
With that in mind, however, you should choose your lawyer very carefully. You may have been seriously injured as a result of medical malpractice and may require years of treatment and hundreds of thousands of dollars to pay for your medical bills to overcome the medical error. As a result, you need a lawyer who can get the best possible outcome for your case.
Some characteristics to look for in a medical malpractice lawyer include:
- Competence: You need a personal injury lawyer who is competent in the law and understands medical issues. A personal injury lawyer who does not understand both will be unable to assess your damages or explain your case to a judge or jury.
- Communication: A personal injury lawyer might have a brilliant mind. But if you feel like the lawyer does not understand you or does not explain the law or your options well, you might want to look for a different lawyer. Communication is critically important for a good outcome. If the lawyer cannot communicate medical malpractice information with you, the medical provider’s insurance company and lawyers, a judge, or a jury, the lawyer will have a difficult time negotiating a settlement or winning your case.
- Organization: The lawyer and the lawyer’s staff must be organized. Medical malpractice claims require medical records, expert testimony, billing records, and witness testimony. The lawyer must be able to keep track of all these documents and be able to call on them immediately during negotiations and litigation.
- Experience: Experience provides many non-tangible benefits. Negotiation technique and style is often developed over years of practice. Likewise, experience with a wide range of cases can help a lawyer anticipate how a case will proceed and maneuver the case into the best possible position.
Typical Process for a Medical Malpractice Case
After a personal injury lawyer has your medical malpractice information, the lawyer will typically write to the medical provider. The purpose of this letter is twofold.
- The letter will typically request records and documents so your lawyer has the evidence needed to prepare your case.
- The letter places the medical provider on notice of your claim so the medical provider can alert its malpractice insurer.
From this point forward, your medical malpractice case will be handled primarily through your medical provider’s insurance company. Specifically, the insurance company will hire a lawyer to defend the medical provider and this lawyer will deal with your lawyer.
In a typical case, the lawyers might try to settle the claim before your lawyer files a lawsuit. The benefit of this strategy for the insurance defense lawyer is lawsuits generate publicity. By settling before a lawsuit is filed, the medical provider may avoid negative publicity about the case.
If the parties are unable to reach a pre-lawsuit settlement and you still want to go ahead with a claim, your lawyer will file a lawsuit. This legal maneuver generates leverage over the insurance company. Lawsuits are expensive to defend and can consume a lot of the insurance company’s time. Moreover, the judge assigned to the lawsuit will impose deadlines for producing documents and filing motions. This time and money pressure can often move settlement negotiations along.
Moreover, many states require the parties to attend a settlement conference to try tp settle lawsuits before trial. This settlement conference allows a judge or magistrate to act as a mediator to try to resolve the case. These conferences often result in either a narrowing of the issues for trial or a settlement.
If none of the attempts to settle the case succeed, the case will be tried. When you file your lawsuit, you are entitled to request a jury trial. A jury is often a good option in medical malpractice cases because juries can be sympathetic to injured patients. However, you must be careful to select the right jury, because medical malpractice cases can be difficult to understand.
After presenting your medical malpractice information to the jury for your claim, the medical provider’s lawyer presents its defense case. At the end of both presentations, the jury deliberates to reach a verdict. If the jury finds in your favor, it will award damages.
Medical Malpractice Damages
Unfortunately, a jury or settlement cannot repair the damage caused by medical malpractice. However, it can compensate you for your injuries. As a result, your expectation for damages will flow directly out of your case’s medical malpractice information.
Damages generally fall into three categories:
- Compensatory damages: These are damages for losses and expenses directly resulting from the injury, such as medical bills and lost wages.
- Consequential damages: These damages are a natural consequence of your injury. For example, if you have to join the 5 million U.S. Employees who work from home at least half the time because you are unable to stand or walk due to your injury, you could be compensated for future lost earnings.
- Punitive damages: These damages are intended to punish the liable party for egregious behavior. For example, punitive damages might be assessed against an insurance company that denies a clear medical malpractice claim in bad faith.
When assessing damages, you are not allowed to double dip. Thus, if you have filed a social security disability application for partial wage replacement, you must disclose this to the court so it can be deducted from the damages for lost wages.
Every medical malpractice case is unique. Consequently, the best source of medical malpractice information about your case is a personal injury lawyer. Thus, you should find a good lawyer and discuss how your claim might proceed.