Making Medical Malpractice Legal

Medical malpractice is a difficult legal area. Physicians should take steps to protect themselves from legal liability by obtaining sufficient medical malpractice insurance.

Patients must show that the physician's failure to fulfill duty caused harm to them, and damages are dependent on the actual economic losses such as lost income and costs of future medical procedures, in addition to non-economic losses, such as suffering and pain.

Duty of care

The first thing medical malpractice attorneys malpractice lawyers need to establish in the case is the duty of care. All healthcare professionals have an obligation to act in accordance with the prevalent standard of care applicable to their specific field. This includes doctors, nurses and other medical professionals. It also extends to assistants or interns as well as medical students under the supervision of an attending doctor or physician.

The standard of care is set by an expert witness from medical in court. They review the medical records and then compare them to what a competent physician in the same field would have done under similar circumstances.

If the healthcare professional's or their actions were below the standard, they have breached their duty of medical care and resulted in injury. The patient who was injured then has to demonstrate that the breach of duty committed by the healthcare professional directly led to their losses. These can include scarring, pain and other injuries. These can include medical expenses along with lost wages and other financial losses.

For example when a surgeon has left a surgical tool in the patient after surgery, it can cause pain and other problems that result in damage. A medical malpractice lawyer could prove that the surgical team's breach of their duty caused these damages through testimony from medical experts. This is referred to as direct causation. The patient must also provide evidence of their damages.

Breach of duty

A malpractice claim may be filed when a medical professional violates the accepted standards of practice and causes injuries to patients. The party who suffered the injury must demonstrate that the doctor violated their duty of care by providing care that was not up to par. In other words, the doctor was negligent and this caused the patient to suffer damages.

To establish that a physician breached his duty of care, a knowledgeable attorney must present expert witness testimony to prove that the defendant was unable to have the level of expertise and knowledge physicians in their specialty hold. Further, the plaintiff must demonstrate a direct link between the alleged negligence and the injuries sustained; this is known as causation.

A person who is injured must also demonstrate that he or she would not have opted for one particular treatment had they been properly informed. This is also known as the principle of informed consent. Doctors are required to inform patients about possible dangers or complications associated with procedures prior to deciding to perform surgery or place the patient under anesthesia.

To make a medical malpractice case, the injured patient must file a lawsuit within a specific time period known as the statute of limitations. Whatever the severity of the error of the health professional or how seriously the patient has been injured, a court will almost always dismiss any claim made after the statutes of limitations have passed. Certain states require that parties to a medical malpractice lawsuit submit their claims to an independent screening panel or to arbitral binding arbitration in a voluntary manner in lieu of the trial.

Causation

Medical malpractice cases require a substantial investment of time and money both for physicians involved in the lawsuit and their lawyers. The process of proving that a doctor's treatment departed from the accepted standard requires extensive review of medical records, appoints with witnesses, and an analysis of medical literature. Additionally, lawsuits must be filed within a period of time specified by law. Generally speaking, this deadline -- also known as the statute of limitations, begins to run after the medical malpractice lawyers malpractice occurred or when the patient discovered (or should have known in the eyes of the law) that they were harmed due to a doctor's error.

Causation is the fourth and most crucial element of a medical malpractice case. It is often the most difficult to prove. A lawyer must show that a doctor's breach of the duty of care directly led to injury to the patient and that the losses or injuries would not have occurred but due to the negligence of the doctor. This is known as proximate or actual cause. The legal standard for proving this element differs from the one used in criminal cases, where proof must be beyond a reasonable doubt.

If a lawyer is able to establish these three essential elements, then the sufferer of malpractice may be eligible for monetary compensation from the defendant. The purpose of these monetary damages is to compensate the victim for their injuries, loss of quality of life and other expenses.

Damages

Medical malpractice cases are often complex and require extensive expert testimony. The lawyer representing the plaintiff must prove that the doctor did not adhere to a standard of care, and that the negligence caused injury, and that the injury led to damages. The plaintiff must also demonstrate that the injury can be measured in terms of money.

Medical negligence lawsuits can be among the most complex and expensive legal proceedings. To lower the expense of lawsuits, states have introduced tort reform measures aimed at improving efficiency by limiting frivolous claims and making sure injured parties are compensated fairly. Some of these measures include limiting the amount that plaintiffs may recover for pain and suffering as well as limiting the number defendants who may be responsible for the payment of an award (joint and multiple liability) as well as making arbitration, mediation or the submission of a claim to a panel of judges for a screening prior to trial; and setting limits on damages in medical malpractice lawsuits.

Additionally, many malpractice claims are highly technical issues that are difficult for judges and juries to grasp. Experts are essential in these cases. For instance the case where a surgeon has made a mistake during a surgery, the patient's lawyer must employ an orthopedic expert to explain how that specific error could not have happened had the surgeon acted in accordance with relevant medical standards of care.