Medical
Malpractice
Medical malpractice has occurred when a
physician has failed to treat a patient with the same standard
of care as that of a "reasonable and prudent" doctor
causing damages to occur.
The damages can be in the form of a personal
injury and/or substantive loss of income. It has been estimated
that over 225,000 people per year die in the United States due
to medical malpractice. This statistic has been reported by the
Journal of the American Medical Association (JAMA).
Of those who are the victims of medical malpractice, only about
10-percent ever file a lawsuit. Out of this group, approximately
one-half will recover damages from their medical malpractice lawsuit.
In order for a medical malpractice lawsuit to succeed, the plaintiff
will have to prove that they were a patient of the hospital or
doctor, there was a breach in the standard of care, an injury
was caused and the damages were the result of the doctor's mistake.
If these four components have been proven, then a positive outcome
in the medical malpractice suit will likely ensue.
Medical malpractice cases are by their nature very complicated.
Therefore, when pursuing this type of case a medical
malpractice lawyer needs to be consulted. The attorney should
be well-versed in general medical procedures and the medical law
system. Some attorneys even specialize in subsets of medical malpractice
such as brain injury lawyers
or birth injury lawyers.
When pursuing a medical malpractice case, it will first need
to be proven that a doctor-patient or hospital-patient relationship
exists. If this relationship does not exist (such as friendly
advice from a neighbor), then the medical malpractice lawsuit
will not go forward. Once this relationship has been established
then the second step is to prove that a breach of the standard
of care existed.
In order to prove a breach in the standard of care existed, the
standard of care will need to be established. This is most commonly
accomplished with the aid of expert medical witnesses. Physicians
within the same specialty as the defendant doctor may testify
that under the same circumstances, they would have handled medical
matters differently and that there approach would be considered
common.
Once the standard of care has been established, the third step
will be to prove that the plaintiff suffered an injury. This may
seem obvious, but jurors in medical malpractice cases are more
likely to assign damages when permanent injury has occurred, and
thus in most cases, personal, life-long permanent damage must
be established before a case can go forward.
After it has been proven that the doctor's (or hospital's) mistake
caused the injury, then the fourth step is to determine the injury
was caused by the acts or omissions of the doctor. Expert testimony,
witnesses and medical records will play an important role in establishing
that the doctor's mistakes caused the patient to be injured.
If medical negligence is suspected, it is wise to consult a medical
malpractice lawyer promptly. Medical records from the doctor and
hospital will need to be gathered as quickly as possible. The
longer the wait, the higher the chances that some important medical
records may be damaged or misfiled. Also, cases need to be filed
within the statute of limitations, which is 2 years for most states,
though some exceptions do occur.
In addition, time is of the essence so that your medical malpractice
lawyer can depose witnesses before memories have changed or witnesses
have collaborated on their stories, unintentionally changing facts
due to the "group" effect. Fresh recall of witnesses
is one of the most valuable resources for any medical malpractice
case.
Medical malpractice cases are complicated. It is wise to consult
with a qualified attorney to see if they think you have a case
worth pursuing. Bringing in as many records as possible to the
initial consultation will help the attorney decide if negligence
claim has merit. Remember also that not all medical malpractice
attorneys will see merit in the same case, so it may take a couple
of tries to find the right attorney for your case.
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