A study from Johns Hopkins Medical suggests that errors and omissions from medical malpractice are the third leading cause of death in the United States. Medical malpractice cases are some of the most strenuously defended claims in the law of personal injury. They’re time consuming, and they’re expensive to bring and win. In order to prove that medical malpractice occurred, you’ll need to show:
There Was a Physician and Patient Relationship
Establishing a doctor and patient relationship is more contractual than medical. You’re required to show that you wanted to hire the doctor, and the doctor agreed to be hired. The question of whether there was a physician and patient relationship might get confusing if the doctor was a consulting physician who didn’t directly treat and care for you.
The mere fact that there was a bad result doesn’t mean that a doctor was careless and negligent in treating his or her patient. There are several important points to keep in mind:
- We’re required to show that the physician who treated you or your family member breached the standard of care and caused harm. That standard of care is consistent with the level and type of care that a reasonably competent and skilled physician with similar training in the same geographical area would have provided under the same or similar circumstances.
- The care and treatment need not be the best possible. It need only be reasonably careful and skillful. That level of care and any alleged deviation from it are what the facts of most medical malpractice cases turn on.
- Each side almost always hires its own independent expert to testify on the standard of care and any breach of it. Sometimes the parties have more than one expert.
People usually don’t see doctors unless they’re sick or injured. The severity of the illness or injury that brought the patient to the doctor must be considered. The level of severity raises the issue of whether the doctor’s care and treatment actually harmed the patient. This can be a cloudy issue often left to the testifying experts. To prove medical malpractice, we’re required to show that a doctor’s negligence through an error or omission in treatment actually caused the harm. Even a gross deviation from the standard of care isn’t actionable if no serious harm was caused to the patient.
Proximate cause in medical malpractice is determined by using a “but for” test. But for the error or omission of the treating physician, would the specific harm that the patient is complaining of have occurred? That specific harm must result in legal damages to the patient. Those damages might be in the form of:
- Additional medical bills
- Physical pain and suffering
- Lost earnings and earning capacity
- Any permanent disfigurement
- Any permanent disability
- Funeral and burial expenses in the event of a wrongful death
Common Examples of Medical Malpractice
A wide variety of acts or failures to act can constitute medical malpractice. Some common types of medical malpractice are:
- Failure to diagnose or a misdiagnosis. There might have been a better result without one of these occurring.
- Improper treatment or choosing the proper treatment but administering it improperly.
- Failing to warn a patient of known risks.
- Surgical errors like operating on the wrong body part or performing the wrong procedure on a patient.
- Anesthesia errors by administering too little or too much of an anesthetic to a patient.
Medical malpractice laws vary widely from state to state. Anybody contemplating a medical malpractice case should speak with an experienced and respected attonrey such as the Personal Injury Lawyer Milwaukee WI locals trust before making the decision to take legal action.
Thanks to our friends and contributors from Hickey & Turim for their insight into medical malpractice claims.