Medical Malpractice - An Overview

In each state, doctors abide and follow what is called the "standard of care." The standard of care is what a competent doctor would have done under similar circumstances. Each state determines what their standard of care is, and doctors are held to that standard. If at any time, a doctor does not follow that standard, but falls below it for any reason, they can be found negligent. The failure to exercise the standard of care is commonly referred to as medical negligence or medical malpractice.

Negligence is conduct that causes injury or damage because it falls below that state's required standard. Medical negligence is established when a person suffers harm because of the foreseeable risky, harmful or insufficient care of a medical professional. Any person who is qualified and who assumes any part of the responsibility for a patient's medical and/or psychological well-being can be guilty of medical malpractice. This includes nurses, psychologists, pharmacists and specialists.

Certain aspects of medical malpractice cases vary from state to state, such as the standard of care, and the time periods in which one can bring a suit against the medical professional they feel has harmed them or a loved one. This time period is known as the statute of limitations. In most cases, it is either one to three years, but be sure to check your state's own laws to be accurate. There is also another statute for wrongful death suits, and those vary as well. While the standard varies, there are some basic principals of malpractice that apply to almost every claim; these must be proven in order to be guilty of negligence.

Duty is the most essential component to every medical malpractice claim, as it establishes the legal relationship between the two parties. In the medical field, duty is between the doctor and the patient. When a patient comes to a physician to be evaluated or administered to in any way, a duty is established. The physician must care for the patient in an appropriate manner, upholding their specified standard of care. The physician has a duty to treat the patient, and must perform that duty to the best of his or her ability. In any medical malpractice case, the accused medical professional must have been obligated to render services to the person claiming negligence. This means that a doctor who goes to a nursing home to visit a relative has no obligation or duty to render services to an elderly person who slips and falls while he is present.

If duty is established, there must be a breach of that duty; this breach of duty is the second step that must be proven in a malpractice suit. It must be proven that the medical professional did not care for or treat the patient with the skill, care, or speed that a reasonable peer professional would have under the same circumstances. It is customary for expert witness to be utilized in determining the standard of care that is reasonable. These expert witnesses are usually other practicing physicians. The rules for expert witnesses also vary from state to state; not just any other physician can be called as an expert witness.

The last critical component of medical malpractice is harm or damage. As a result of something that a medical professional did or did not do, a person must have suffered a negative result that he or she would not have suffered if the medical professional had been more responsible. No action can be brought against the medical professional if the negative result is one that is accepted as a possibility for a given condition. Nor can action be brought because a disease progresses while a patient is in treatment. However, medical malpractice is present if a doctor attempts "novel" or alternative treatments when there is a conventional treatment with a proven record of success.

Harm or damages may be categorized as pain, suffering, scarring, loss of life, lost work and lost earning capacity, or any of a number of other injuries. Essentially, it is the way in which the malpractice or negligence affected the patient. Damages may also be physical, emotional or financial, and the law allows for the successful plaintiff (patient or person who has brought the suit) to recover compensation for the harm sustained.

Medical malpractice may span beyond mere negligence into gross negligence. Gross negligence is present when a medical professional has acted so recklessly or harmfully that the mistake seems obvious to any reasonable person, even one who has no medical expertise. For example, a surgeon who amputates a finger that only needs stitches is gross negligence. Another example is leaving something in the body cavity, such as a surgical instrument, following an operation.

Medical malpractice law is a highly specialized field. If you feel that you or someone you know has been a victim of medical malpractice, it is in your and your family's best interest to consult an attorney or law firm whose main focus is medical malpractice or personal injury law, to ensure that you have the best representation on your side.

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