Medical Malpractice Basics

Newsletter Type: Medical Malpractice

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What Is Medical Malpractice
Medical malpractice occurs when a health care provider commits negligence in treating a patient. Medical malpractice can be committed not only by doctors and nurses, but by all types of health care professionals. For example, medical malpractice actions can cover negligence by dentists, dental staff, nursing homes and their staff, and medical facilities. In addition, medical malpractice actions may lie against health care providers that the patient never encountered. For example, a medical malpractice action might lie against a pathologist or radiologist who misread x-rays or biopsies, even though the patient did not know of that person's involvement in his or her care. Medical malpractice may occur in a variety of circumstances. Some examples of medical malpractice claims are those arising from the failure to diagnose a disease or a delay in diagnosis, from a mistake in surgery or other medical procedure, from the failure to properly treat an injury or illness, or from the administration or prescription of improper medications.

How Is Medical Malpractice Proven
Medical malpractice is not merely the result of an undesirable or unexpected medical outcome. In order to prove medical malpractice, a plaintiff is required to show that a health care provider owed a duty of care to the plaintiff, that the standard of care was breached, and that the plaintiff was injured as a result of that breach of care. Healthcare providers owe a duty of care to their patients as a result of the provider-patient relationship. The standard of care -- what other similarly qualified practitioners would have done under similar circumstances -- can vary among the states. In general, the standards of care require either that the healthcare provider meet the standards and customs of care provided by a reasonable healthcare provider of the same type across the profession or that of a reasonable healthcare provider in the same community. Thus, depending on the standard applied by a particular state, a surgeon in a remote rural area may or may not be held to the same standard of care as would a surgeon in a state-of-the-art hospital. Finally, a malpractice plaintiff must show that he or she suffered an injury as the result of the medical negligence. If a provider administers the improper medicine to a patient but no harm results, the patient cannot sustain a malpractice action.

Most medical malpractice cases required that a plaintiff prove his or her case with testimony from a medical expert. The expert will testify as to what the applicable standard of care is for the type of medical professional at issue, how that medical professional failed to meet the required standard of care, and how that failure caused or contributed to the injuries and/or damages claimed. Some medical malpractice actions can be proven without expert testimony. For example, some states allow a plaintiff to present a medical malpractice action without an expert in cases of "res ipsa loquitur." This means that the mere fact that the outcome occurred indicates that there was negligence. Examples of res ipsa loquitur in medical malpractice cases are where the wrong body part was operated on or amputated or where a surgical instrument was left in a patient's body after surgery.

Medical Malpractice Damages
Plaintiffs who prove medical malpractice are entitled to both economic and non-economic monetary damages as compensation. Economic damages include payments for medical bills, lost wages and loss of future wages. Non-economic damages are for pain and suffering and loss of consortium of a parent, spouse or child. Punitive damages, designed to punish extreme offenders, though rare, are sometimes available in medical malpractice actions in cases of recklessness or extremely egregious errors. Some states limit the amount of damages recoverable in malpractice cases.

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