Defenses To Medical Malpractice

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Medical malpractice is a serious issue that can effect anyone and be connected to almost any type of medical treatment, as well as stays in health care facilities. Medical malpractice may be associated with routine visits to a doctor, surgical procedures, visits to the dentist, or stays in long-term care facilities. It is defined as negligence that is committed by a medical professional or health care provider, including but not limited to doctors, nurses, dentists, technicians, hospitals, and nursing facilities. Medical malpractice occurs only when the result of the negligence is harm to the patient.

In the event that a claim is made against a health care professional or health care provider, the individual or entity against whom the claim is made will be judged on a few aspects related to the care they delivered. These aspects include their level of competence and professionalism, the care they provided, and how these elements compare to the level of training and experience they have had. In addition, health care professionals or medical facilities will also be judged against other health care providers who have acted with good judgment and a high standard of care in medical cases that were the same or similar. If the care is not comparable, or does not meet the standard of care provided by other medical professionals, the claim may be actionable.

Because medical malpractice is such a serious issue for all concerned, the litigation process can be very involved. Those brought up on claims of medical negligence could be responsible for paying large amounts of money for damages, or in some cases, even lose their medical licenses. Needless to say, those brought up on medical malpractice claims will typically have attorneys assisting them, as well as established defenses that are viable in such cases. This is particularly important, as it will be necessary for a defendant in a medical malpractice case to have evidence that supports the standard of care he or she delivered, and that he or she did not actually breach their duty of care and responsibility to the patient. A viable defense that might be used is patient negligence, meaning the patient did not adhere to the instructions of the doctor.

The doctor/patient relationship includes two separate duties. The physician's standard of care duties are well know, but few realize that a patient has a duty in this relationship, too. It is this forgotten duty that often becomes the basis for a patient negligence defense in a medical malpractice case.

A prominent duty of the patient occurs in relation to informed consent. Throughout the diagnostic and treatment phases, the doctor and patient communicate and agree upon a course of action. If the doctor breaches this agreement, then there is cause for malpractice. However, a patient can also breach informed consent by not completing his or her part of the agreement. This includes, but is not limited to, failure in attending appointments, taking any tests, and following any instructions for lifestyles changes (dietary, activity restrictions, etc.), and/or taking medicine that might interfere with treatment or not taking diagnosed medication. A breach of informed consent on the patient's behalf is considered patient negligence and can be used as a defense in a malpractice case.

Another often-neglected patient responsibility occurs during the very first visit with the doctor: The all-important medical history. The patient must disclose any and all allergies, past and present medical conditions and treatments, as well as any pertinent familial conditions that he or she is aware of. Nondisclosure of this information can seriously jeopardize care, and is cause for patient negligence, also called contributory negligence.

Patient negligence might also be attributed to a patient involving him or herself in an activity or conduct following alleged medical malpractice that resulted in breaking the chain of events linking malpractice to the patient's harm. The broken chain of events would make it difficult to attribute the malpractice claim to the harm received by the patient.

Another defense in patient negligence could be that the harm or damage that the patient received was a known, unavoidable risk to the procedure. This hearkens back to the informed consent defense. In addition, a defense might be that the patient's prognosis or condition was not made worse by the alleged medical malpractice.

One of the best and most viable ways to prove these and other forms of patient negligence is with documentation. Records from visits with medical professionals, informed consent forms, and patient histories are just a few pieces of evidence already in a physician's possession that can help build a defense on patient negligence. It is critical to have as much evidence as possible to support a claim of patient negligence in a medical malpractice case.


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