Making Medical Malpractice Legal
Medical malpractice is a tangled legal field. Physicians should be proactive to guard against liability by purchasing adequate medical malpractice insurance.
Patients need to prove that the physician's breach of duty led to injury. Damages are contingent on economic losses such as lost income, future medical costs and non-economic losses such as discomfort and pain.
Duty of care
The first element that a medical malpractice attorney needs to establish in a case is the duty of care. All healthcare professionals have the obligation of acting in accordance with the prevailing standard of care applicable to their specific area of expertise. This includes doctors and nurses as also other medical professionals. This includes medical students, interns and assistants who work under the supervision of a physician or doctor.
The quality of care is determined by an expert witness in court. They scrutinize the
medical malpractice attorneys records and then compare them to the standards of care a competent doctor in the same field would have done under similar circumstances.
If the healthcare professional's or their actions were below this standard, they have breached the duty of care and caused injury. The injured patient then has to prove that the breach of duty by the healthcare professional directly led to their losses. This could include scarring, pain and other injuries. They may also include financial losses such as medical expenses and lost wages.
For example the case where a surgeon left a surgical tool inside the patient after surgery, it can cause discomfort and other issues that lead to damages. A medical malpractice attorney (
look at here now) can prove through the testimony of an expert medical doctor that the surgical team's negligence caused the damage. This is referred to as direct causality. The patient must also provide evidence of their injuries.
Breach of duty
If a medical professional strays from the accepted standard of care and this deviation results in injury to the patient then a malpractice lawsuit can be filed. The victim must prove that the doctor breached their duty to care by providing care that was inadequate. The doctor was in a negligent manner, and this caused the patient to suffer injury.
To prove that the physician breached their duty to care, a seasoned attorney needs to present expert testimony to show that the defendant failed to possess or exercise the degree of skill and knowledge held by doctors in their field of expertise. The plaintiff should also prove that there is a direct correlation between the alleged negligence and the resulting injuries. This is referred to as causation.
In addition, the plaintiff who has been injured must also prove that they would not have opted for the course of treatment had they been adequately informed. This is also referred to as the principle of informed consent. Doctors are required to inform their patients about the potential risks or complications that could arise from a specific procedure prior to performing surgery or putting the patient under anesthesia.
The statute of limitations is a time limit that must be met by the injured patient to make a claim for medical malpractice. No matter how grave the mistake made by the healthcare provider or how badly the patient has been injured, a court will almost always reject any claim made after the statute of limitations has expired. Some states have laws that require the plaintiffs in a medical malpractice suit to participate in voluntary binding arbitration or submit their claims to a screening panel as an alternative to going to trial.
Causation
Both the lawyers and the physicians who are involved in the litigation need to put in a lot of time and money to demonstrate medical malpractice. The process of proving that the doctor's treatment was different from the accepted standard requires extensive review of medical records, appoints with witnesses, as well as an analysis of medical literature. Furthermore lawsuits must be filed within a period of time stipulated by law. Generally, this deadline - referred to as the statute of limitations begins to expire when the medical malpractice occurred or when a patient discovers (or should have known in the eyes of the law) that they had been harmed due to a doctor's error.
Proving causation is one the four essential elements of a medical malpractice case and it is perhaps the most difficult to prove. A lawyer must establish that a doctor's breach of the duty of care directly caused harm to the patient, and that the injuries or losses could not have occurred if it weren't because of the negligence of the physician. This is known as proximate or actual cause. The legal requirement for proving this aspect differs from that used in criminal cases, where the proof must be beyond reasonable doubt.
If a lawyer can prove the three main elements, then the person who was the victim of malpractice could be eligible for monetary compensation from the defendant. These monetary damages are intended to compensate the victim for injuries as well as loss of quality of life, and other damages.
Damages
Medical malpractice cases can be complicated and require a large amount of expert testimony. The lawyer representing the plaintiff must prove that the doctor failed to meet a standard of care, and that the failure caused injury, and that such injury led to damages. The plaintiff also needs to prove that the injury was quantifiable in terms of dollars.
Medical negligence claims can be among the most complex and expensive legal proceedings. To combat the high cost of lawsuits, states have introduced tort reform measures aimed at improving efficiency in limiting frivolous claims, and making sure injured parties are compensated fairly. These measures include limiting what plaintiffs are entitled to for pain and suffering, and limiting the number of defendants responsible for paying an award and requiring mediation or arbitration.
Many malpractice cases also involve complex technical issues that are difficult to understand by juries and judges. This is why experts are so important in these cases. If a surgeon makes an error during surgery, the lawyer of the patient needs to engage an orthopedic surgeon to explain why the mistake could not have occurred in the event that the surgeon had done his job according to the pertinent medical standards.