Medical Malpractice Background

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Medical malpractice is based on the principle of professional guarantee. Everyone, including the facility involved in treating an individual, is obligated to render services at a reasonable standard. If that individual is harmed or suffers because of erroneous or careless judgment, negligence is present and action may be taken.

Medical malpractice laws were put into place to protect patients' rights to seek compensation if they are injured as a result of negligence on the behalf of a professional health care provider. Medical malpractice can occur in many fashions, on many fronts, both by complete error and failure to comply to regulated procedures. Some examples of injury or death that can be labeled as negligent accidents include surgical errors, pharmaceutical error, dental damage, medical records forgery or deletion, misdiagnoses, failure to adhere to medical standards, improper monitoring, injuries and death during birth delivery, and outright abuse.

Duty is the first essential element of medical malpractice. Anyone accused of medical malpractice must have had an obligation to the person claiming negligence. No matter how dire or severe the circumstances, medical professionals are not obligated to treat anyone with whom they have no established relationship. The law recognizes that justice cannot be served if people with medical expertise are forced to act in a hasty, chaotically paced situation, all while adhering to a professional standard. However, if a medical professional volunteers their assistance, they are responsible for any resulting harm caused by negligence.

Breach of duty is the second element of medical malpractice. Every patient has an affirmative right to a legally established standard of care. Duty obligates all medical professionals to that standard, which is judged by the level of competency and professionalism of peer professionals in the same or similar circumstances. This means that specialists are held to the standard of specialists in their field. It also means that if a registered nurse opts to perform duties normally performed by a specialist, he or she will be judged by the standard of the role that they acted in.

Standard of care is based upon the locality rule, which judges skill, care, and competency by location. At one time, the education, equipment, and facilities available to medical professionals greatly varied throughout the country. The law sought to protect medical professionals by holding them to a standard that was reasonable within their area. Nowadays, as medical care is becoming more uniform, the locality rule includes an examination of state development.

Harm or damage resulting from substandard care is the third critical element. The accuser must suffer a negative result they would not have suffered if a medical professional had not acted negligently. All medical professionals should possess certain undeniable skills, but they are not required to be miracle workers. Action cannot be brought against a physician solely because a patient does not achieve desired results or traits. Most states prohibit any medical malpractice claims based upon a doctors promise for a guaranteed result. A few states allow the exception of cosmetic surgery if the guaranteed result is stated in a written contract.

Most law firms will accept malpractice cases on a contingency-fee basis. This means that the individual filing the claim does not have to pay lawyer fees unless the case is settled in a way favorable to the client. Typically, the individual is not required to cover expenses associated with the case, regardless of whether the case is won or lost. There are a number of reasons why a law firm may not agree to represent an individual in a medical malpractice case. If there is no credible expert who will testify that malpractice has taken place and was cause for the injury or death, the case will generally not be successful in court. If the cost of bringing the case to trial is estimated to surpass the amount of money thought to be rewarded in the case, it would not be economically feasible for the law firm to pursue the case and often times they won\'t. The severity of the injury caused by the malpractice is also a determining factor as to whether or not a law firm will choose to represent an individual. An injury such as a heart attack, stroke, or permanent disability will more likely bring a more viable lawsuit than a minor, temporary injury.


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