MEDICAL MALPRACTICE

Medical malpractice law is highly specialized, and regulated by a complex body of rules, which vary considerably from state to state. It is essential to get advice from a lawyer experienced in this area when considering whether to pursue a medical malpractice suit.

Medical malpractice occurs when a patient is harmed by a doctor (or other medical professional) who fails to competently perform his or her duties. The rules about medical malpractice — from when you must bring your lawsuit to whether you must notify the doctor ahead of time — vary from state to state. However, there are general principals and broad categories of rules that apply to most medical malpractice cases regardless of jurisdiction.

Basic Requirements for a Claim

Typically, to prove that medical malpractice occurred, you must be able to show all of these things:

A doctor-patient relationship existed. You must show that you had a physician-patient relationship with the doctor — this means you hired the doctor and the doctor agreed to be hired. If a doctor began seeing you and treating you, it is easy to prove a physician-patient relationship existed. Questions of whether or not the relationship exists most frequently arise where a consulting physician did not treat you directly.

The doctor was negligent. Just because you are unhappy with your treatment or results does not mean the doctor is liable for medical malpractice. The doctor must have been negligent — not reasonably skillful and careful — in diagnosis or treatment. To sue for malpractice, you must be able to show that the doctor caused you harm in a way that a competent doctor, under the same circumstances, would not have.

The doctor’s negligence caused the injury. Because many malpractice cases involve patients that were already sick or injured, there is often a question of whether what the doctor did, negligent or not, actually caused the harm. For example, if a patient dies after treatment for lung cancer, and the doctor did do something negligent, it could be hard to prove that the doctor’s negligence caused the death rather than the cancer. The patient must show that it is “more likely than not” that the doctor’s incompetence directly caused the injury.

The injury led to specific damages. Even if it is clear that the doctor performed below the expected standards in his or her field, the patient can’t sue for malpractice if the patient didn’t suffer any harm. Here are examples of the types of harm patients can sue for:

  • personal injury or disfigurement,
  • physical pain,
  • mental anguish,
  • additional medical bills, and
  • lost work and lost earning capacity.

A wide variety of situations can lead to a medical malpractice claim. If a competent doctor would have discovered the patient’s illness or made a different diagnosis, which in turn would have led to a better outcome than the one actually achieved, then the patient may have a medical malpractice claim. If a doctor treats the patient in a way that no other competent doctor would, the patient could have a medical malpractice claim. In a similar vein, it may also be malpractice if the doctor selects the appropriate treatment but administers it incompetently.

Doctors have a duty to warn patients of known risks of a procedure or course of treatment — this is known as the duty of informed consent. If a patient, once properly informed of possible risks, would have elected not to go through with the procedure, the doctor may be liable for medical malpractice if the patient is injured by the procedure (in a way that the doctor should have warned could happen).

Special Requirements

Medical malpractice cases must be brought soon after the injury. In most states, you must bring a medical malpractice claim fairly quickly — often between six months and two years, depending on the state. (The time period in which you must bring the lawsuit is called the “statute of limitations.”) If you don’t file the lawsuit within the specified period of time, the court will dismiss the case regardless of the facts.

When the time period starts ticking also depends on the state. In some states, the clock starts when the negligent act occurred; in others, it starts when the patient should have discovered the injury.

Expert testimony is required. Expert opinions are often a crucial feature of the patient’s case. A qualified expert is usually required at trial. (And often, expert testimony or an expert affidavit is required at the malpractice review panel proceedings prior to commencing trial.) State rules vary as to what makes somebody qualified to provide expert medical testimony, but generally it is someone with experience in the particular field at issue. In a very limited number of circumstances, expert testimony is not required, such as when a surgical towel is left inside the patient after a surgery.

Limits on damage awards. Many states cap the amount of money that can be awarded to a medical malpractice patient.

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