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Medical Malpractice FAQ

What is Medical Malpractice?

Medical malpractice is the failure of a doctor or other health care provider to uphold good and accepted medical techniques or principles. Failure to provide acceptable standard of care causing harm to the patient is medical malpractice. Medical malpractice can include prescription errors, misdiagnosis, failure to treat, improper treatment, delay in treatment and failure to perform timely and appropriate follow-up, to name the most common examples.

What is “standard of care”?

Standard of care requires medical professionals - typically doctors, nurses or hospitals - to exercise the same degree of knowledge, skill or care that other reasonably careful medical professional would use in a similar situation. State law typically determines the definition of negligence, while “standard of care” is “acceptable practice,” which is a degree of skill and learning defined by the medical community:

For instance, the standard of care generally requires a doctor to do the following:

• Take an adequate medical history

• Perform a physical examination

• Order appropriate lab tests

• Interpret and evaluate the results to form a diagnosis or explanation

• Inform of any risks involved in medication or procedure

• Provide proper follow-up and consultations and referral when necessary

In a medical malpractice case, you must prove that the standard of care wasn't followed. An experienced medical malpractice attorney can ascertain whether you may have a case. Experts are generally called upon in court to determine whether any reasonable health care provider could have done what the professional in question did, based on available information.

How should I proceed if I think I have a medical malpractice claim?

Talk to an experienced medical malpractice lawyer as soon as possible; the statute of limitations applies with medical malpractice claims. If possible, bring all your medical records to your first meeting with the attorney.

To prevail in a medical malpractice lawsuit, injury and causation must be proven. An injury must be shown by an expert medical witness (usually a peer to the health professional allegedly negligent) and causation must also be established, meaning the relationship between the negligent medical treatment and the injury to the patient.

I was given the wrong prescription in the hospital. Can I sue the doctor or the hospital?

An attorney can help ascertain the appropriate way to proceed with your claim. A plaintiff in a recent medical malpractice lawsuit regarding a prescription error sued the doctor and his employer, the medical clinic. The suit resulted in a $14 million settlement for the plaintiff.

My family thinks my mother’s death in a nursing home was due to negligence. Can we sue for medical malpractice?

Perhaps. It depends on what happened and where the nursing home is. Some states have their own special procedures and remedies for nursing home issues, and some extended care facilities have adopted a special “bill of rights” for nursing home residents. In most cases, however, if a patient is injured or dies in a nursing home due to medical negligence, a family member can file suit if the victim is unable to do so. When someone dies as a result of medical negligence, the patient’s family may sue for wrongful death.

Can I file a medical negligence complaint?

A doctor can be negligent and still not be liable if the injury or death was caused by some other factor. Negligence becomes medical malpractice when it results in undue injury to a patient. However, medical negligence does not necessarily cause injury to the patient. If a doctor breaks the Hippocratic Oath, which is a promise that they will treat their patients to the best of their ability and the accepted standard of care, that health provider is negligent.

What does “comparative negligence” mean?

Comparative negligence means that if you are 50 percent responsible for your injury, you may only recover 50 percent of the associated damages in an injury claim. Comparative negligence is often used as a defense in a medical negligence claim, but medical negligence is almost always caused by the medical professional.

What is “contributory negligence”?

Contributory negligence occurs when the injured party fails to exercise due care. For example, if a doctor orders a mammogram for a patient, she neglects to undergo the screening exam and files a failure-to-diagnose case, this would mean the patient contributed to the cancer.

Will I have to go to court?

Not necessarily. Most medical malpractice claims are settled out of court and some are even settled before a formal lawsuit is filed. You are required to attend your deposition, which typically takes place in your lawyer’s office. If your case does go to trial, you will have to attend any mediation, the pretrial and the trial. Your lawyer will always accompany you.

How long do I have to file a medical malpractice lawsuit?

Two years is generally the time limit for filing a medical malpractice lawsuit, but speak with your attorney sooner than later as the statute of limitations differs from state to state. As well, gathering medical records and having experts review documents and give their opinions can take a long time.
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Last updated on Aug-29-14

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