Medical malpractice occurs when a negligent act or omission by a doctor or other medical professional results in injury to a patient. Negligence by a medical professional can include an error in diagnosis, treatment or illness management. If such negligence results in injury to a patient, a case could arise against the doctor if his or her actions deviated from generally accepted standards of practice and/or against the hospital for improper care by a resident, nurse or other medical personnel.
Medical malpractice laws are designed to compensate patients if they are injured as the result of hospital or medical negligence. However, malpractice suits are often complex and costly to win. While theoretically you can seek compensation for any injury caused by such negligence, regardless of its seriousness, time and money make it unrealistic to sue for an injury that is minor or heals quickly.
Most medical malpractice cases proceed under the theory that a medical professional was negligent in treating the patient. To establish medical negligence, an injured patient must prove:
- the existence of a duty owed by the health care professional to the plaintiff (for example, a doctor/patient relationship);
- the applicable standard of care and that the health care professional deviated from that standard (a breach of the duty owed to the patient);
- a causal connection between the health care professional’s deviation from the standard of care and the patient’s injury; and
- injury or harm to the patient.
One of the most important aspects of a medical malpractice action is establishing the standard of care to be applied to the health care professional. To find a medical professional legally at fault, it must be shown that his or her conduct fell below a generally accepted standard of medical care for that particular type of medical profession in that particular community. To establish the standard to be applied, the plaintiff must present expert testimony not only as to the standard of care applicable, but that also establishes that the defendant failed to meet the standard.
The next element of medical malpractice actions, causation, is sometimes difficult to establish. Specifically, the plaintiff must show that his or her health care provider’s deviation from the applicable standard of care resulted in his or her injury. This is challenging because sometimes there may be other factors that contributed to the plaintiff’s eventual injury. Again, to establish causation the plaintiff must present expert witness testimony.
Lack of Informed consent
In addition, the failure of a medical professional to obtain a patient’s “informed consent” relative to a procedure or treatment is a form of medical negligence. It means essentially that a physician (or other medical provider) must inform the patient of all potential benefits, risks and alternatives involved in any surgical procedure, medical procedure or other course of treatment, and must obtain the patient’s consent to proceed. If the medical professional fails to do so and there are resultant injuries from such procedure or treatment, an argument can be made that such failure by the medical professional was a causative factor of that injury.
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