Making Medical Malpractice Legal

Medical malpractice is a tangled legal matter. Physicians must take steps to safeguard themselves from the risk of liability by obtaining a sufficient medical malpractice insurance coverage.

Patients must prove that a physician's breach of duty led to injury. Damages are contingent on economic losses such as lost income, future medical costs and other non-economic losses such as discomfort and pain.

Duty of care

The first thing a medical malpractice lawyer needs to establish in the case is the duty of care. All healthcare professionals are required to their patients to act according to the standards of care applicable to their field. This includes nurses and doctors as and other medical professionals. It also includes assistants as well as interns and medical students who work under the supervision of an attending doctor or physician.

A medical malpractice attorney expert witness determines the standards of medical care in court. They look over medical records to determine what a reputable physician in the same field would have done in similar circumstances.

If the healthcare professional's actions or lack of care fell below this standard, they acted in violation of their duty of care and caused injury. The patient who was injured must prove that the breach of care by the healthcare professional directly impacted their losses. These can include scarring, pain and other injuries. They also can include financial losses, such as medical expenses and lost wages.

If a surgeon removes a surgical instrument inside the patient following surgery this can cause discomfort or other issues that could cause damage. A medical malpractice lawyer could prove that the surgical team's dereliction of duty caused the damages by relying on the testimony of an expert in medical practice. This is referred to as direct causation. The patient must also provide evidence of their damages.

Breach of duty

If a medical professional departs from the accepted standard of care and this causes injury to the patient then a malpractice lawsuit can be filed. The injured party must show that the doctor did not fulfill their duty of care by providing care that was substandard. The doctor must have acted negligently, and this negligence caused the patient to suffer damages.

To prove that a doctor did not meet his duty of care, a skilled attorney must present expert witness testimony to establish that the defendant was unable to have or exercise the level of skill and knowledge that doctors with their particular expertise have. In addition, the plaintiff must show a direct relationship between the alleged negligence and the injuries suffered and this is known as causation.

In addition, the plaintiff who has been injured must also prove that they would not have chosen that course of treatment if they had been adequately informed. This is also known as the principle of informed consent. Physicians are required to inform patients of possible dangers or complications associated with a procedure before they perform surgery or put the patient under anesthesia.

In order to bring a medical malpractice claim, the patient who was injured must file a lawsuit within a specific time period that is known as the statute of limitations. A court is almost always able to dismiss a lawsuit filed after the time limit has expired regardless of how grave the error of the health professional or how harmful to the patient was. Some states have laws that require plaintiffs in a medical malpractice lawsuit to participate in voluntary binding arbitration or submit their claims to a screening panel prior to going to trial.

Causation

Medical malpractice cases require a significant 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 standards requires extensive review of medical records, appoints with witnesses, as well as an analysis of medical literature. Furthermore lawsuits must be filed within a certain period of time that is set by law. Generally speaking, this deadline -- also known as the statute of limitations begins to expire when the medical malpractice lawyers malpractice occurred or lawsuit when the patient realized (or should have known under the terms of the law) that they were injured by a mistake made by a doctor.

Proving causation is one the four essential elements of medical malpractice claims and perhaps the most difficult to prove. A lawyer must demonstrate that a doctor's breach of the duty of care directly caused harm to the patient, and that the losses or injuries could not have occurred if it weren't because of the negligence of the physician. This is known as actual or proximate causes. The legal requirement to prove this element is different from the one required in criminal proceedings, in which the proof must be beyond reasonable doubt.

If a lawyer can demonstrate these three factors that the victim of malpractice could be entitled to monetary compensation. These monetary damages are intended to compensate the victim for injuries, loss of quality of life and other damages.

Damages

Medical malpractice cases can be a bit tense and require expert testimony. The plaintiff's attorney must prove that the doctor failed to adhere to a standard of care, and that the negligence caused injuries, and that the injury led to damages. The plaintiff must also demonstrate that the injury is quantifiable in terms of money.

Medical negligence lawsuits can be one of the most complicated and expensive legal actions. To cut down on the high costs of lawsuits, states have enacted tort reform measures that aim to improve efficiency in limiting frivolous claims, and compensating injured parties fairly. Some of these measures include limiting the amount that plaintiffs are able to receive for suffering and pain and limiting the number of defendants who could be held accountable for paying an award (joint and several liability) or the requirement of mediation, arbitration or the submission of an action to a panel of judges for a screening prior to trial; and placing caps on damages in medical malpractice lawsuits.

In addition, many malpractice cases involve extremely technical issues that are difficult for judges and juries to grasp. Experts are critical in these cases. If a surgeon makes an error during surgery, the lawyer of the patient has to hire an orthopedic specialist to explain why the error wouldn't have occurred should the surgeon acted according to the applicable medical guidelines.