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Making Medical Malpractice Legal

Medical malpractice is a thorny legal area. Physicians should be proactive to safeguard themselves from legal liability by purchasing a sufficient medical malpractice insurance.

Patients must show that the doctor's breach of duty caused injury to them, and damages are based on actual economic losses such as lost income and expenses for future medical procedures, as well as non-economic losses, such as pain and suffering.

Duty of care

The first element that a medical malpractice attorney needs to establish in a case is the obligation of care. All healthcare professionals have an obligation to act in accordance with the prevailing standard of care for their specific area of expertise. This includes nurses, doctors, and other medical professionals. This includes medical students, interns, and assistants who work under supervision of a doctor or physician.

The standard of care is established by a medical expert witness in court. They look over the medical records and compare them with what a competent doctor in the same field would do in similar circumstances.

If the healthcare professional's actions or their conduct fell below the standard, they have breached their duty of medical care and caused injury. The injured patient then has to demonstrate that the breach of duty by the healthcare professional directly triggered their losses. This can include scarring pain, and other injuries. They can also include medical costs loss of wages, as well as other financial losses.

For example, if a surgeon left a surgical instrument inside the patient following surgery, it could trigger pain and other problems that result in damage. A medical malpractice attorney can demonstrate through the testimony of an expert in medical practice that the negligence of the surgical team caused the damages. This is known as direct causation. The patient must also provide evidence of their damages.

Breach of duty

If a medical professional strays from the accepted standard of care and this causes injury to the patient then a malpractice lawsuit can be filed. The party who suffered the injury must prove that the doctor breached their duty to care by providing treatment that was not up to par. In other words, the doctor acted negligently and this caused the patient to suffer damages.

To prove that a physician did not fulfill their duty of care, a seasoned attorney must present evidence from an expert to establish that the defendant did not have or exercise the level of knowledge and skill required by physicians who specialize in their field. In addition, the plaintiff must show a direct relationship between the negligence alleged and the injuries that were sustained and this is known as causation.

Moreover, the injured plaintiff must prove that they would not have chosen the course of treatment had they been properly informed. This is also known as the principle of informed permission. Physicians must inform patients of the potential complications or risks associated with the procedure prior to performing surgery or place the patient under anesthesia.

In order to file a medical negligence case, the injured patient must file a lawsuit within a timeframe called the statute of limitations. A court will typically dismiss a claim that is filed after the statute of limitations has passed regardless of how grave the error of the health professional or how damaging to the patient was. Certain states have laws that require plaintiffs in a medical malpractice lawsuit to engage in binding arbitration at a voluntary basis or submit their claims to a screening panel prior to going to trial.

Causation

Medical malpractice cases require significant investment of time and funds, for both the physicians who are involved in the litigation and their lawyers. To prove that a doctor’s treatment was not in accordance with the standards, it is necessary to examine medical records, speak with witnesses, and review medical literature. Furthermore, lawsuits must be filed within the specified period of time set by law. Generally, this deadline--called the statute of limitations -- begins to run after the mistake in health care occurred or when the patient realized (or should have known according to the law) that they were injured due to a doctor's error.

Causation is the fourth and most crucial aspect of a medical malpractice case. It is often the most difficult aspect to prove. A lawyer must demonstrate that a physician's breach of the duty to care caused injury to a patient, and that the injury wouldn't have occurred had it not been due to the negligence of the doctor. This is known as proximate or actual cause. The legal standard to prove this element differs from that of criminal cases, where the proof must be beyond reasonable doubt.

If a lawyer is able to establish these three essential elements, then the sufferer of malpractice could be able to claim financial compensation from the defendant. These monetary damages are meant to compensate the victim for injuries, loss in quality of life and other losses.

Damages

Medical malpractice cases can be complex and require expert testimony. The attorney representing the plaintiff must demonstrate that the doctor did not adhere to a standard of care, that such failure caused injury, and that the injury led to damages. The plaintiff must also prove that the injury was measurable in terms of dollars.

Medical negligence claims are one of the most complicated and expensive legal actions. To reduce the cost of litigation, many states have implemented tort reform measures which aim to increase efficiency, decrease frivolous claims and compensate victims fairly. Some of these measures include reducing the amount plaintiffs can get for suffering and pain as well as limiting the number defendants who are responsible for the payment of an award (joint and several liability) or the requirement of mediation, arbitration or the submission of claims to a panel to be screened prior to trial; and placing caps on damages in medical malpractice lawsuits.

Many malpractice cases also involve technical issues that are difficult for juries and judges. This is why experts are so important in these cases. For example, if a surgeon makes an error during surgery, the patient's lawyer must engage an orthopedic expert to explain how the mistake would not have occurred had the surgeon acted in accordance with the relevant medical standards of care.