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Medical providers, just like anyone else, sometimes make mistakes on the job. Usually, those mistakes are minor and cause no real harm to patients. But a major error, or a combination of several minor mistakes, can have disastrous consequences for patients.
To prove a case of medical malpractice, an attorney must demonstrate that a healthcare provider:
- Had a duty of care to the patient
- Breached the standard of care (or acted in a way that a reasonable, similarly trained person would not have acted)
- That the breach, or error, caused actual harm to the patient
Following are three signs that you might have a medical malpractice case.
1. Lack of Informed Consent
Many medical procedures come with a certain amount of risk or possible complications. Before any treatment, a physician should explain the risks and benefits, so the patient knows what to expect. Lack of informed consent exists when:
- A doctor performed a procedure the patient did not agree to
-or-
- A doctor failed to sufficiently explain the risks and benefits of a treatment
-and-
- Had the doctor fully explained the risks of treatment, the patient would have declined it/chosen an alternative.
In malpractice cases that involve a lack of informed consent, the patient must have suffered actual harm, but the patient's attorney doesn't need to prove that a healthcare worker deviated from the standard of care. So, for example:
A heart surgeon performs an operation to replace a patient's valve. During the operation, the surgeon notices damage to another heart valve and decides to replace it, even though the patient did not consent to the second procedure. If the second procedure causes no harm, the patient has no malpractice case. But if the second procedure results in a serious long-lasting infection or some other severe complication, that would be grounds for medical malpractice, even if the second procedure did not deviate from the standard of care.
2. Extraordinary Consequences
Doctors must explain risks and benefits of treatment that are foreseeable – they don't have to describe highly unusual risks. When a patient does experience a highly unusual outcome after treatment, that could be a sign that a mistake occurred. For example:
A surgeon performs a biopsy on a patient's abdomen – a simple procedure with a quick recovery time. But weeks later, the patient suffers severe abdominal pain, bloating, and fever. At the emergency room, doctors order a scan of the patient's abdomen and discover a surgical sponge was left behind during the biopsy.
A doctor prescribes an antibiotic to treat a patient's infection but fails to check the patient's history of allergies. The patient is allergic to the antibiotic and suffers anaphylactic shock after taking it.
3. A Healthcare Provider Informs You of the Mistake
The Agency for Healthcare Research and Quality developed its program CANDOR (Communication and Optimal Resolution) as a way for hospitals and health care providers to address medical errors. The principles of CANDOR are:
- Be honest with patients and their families when a medical error has occurred
- Apologize
- Offer them compensation
- Conduct an investigation about the cause of the error
- Update patients about the progress of the investigation.
These principles are commendable, but CANDOR hasn't caught on with all healthcare providers. Some hospitals are reluctant to admit it when they or their employees have made a mistake. And regardless of whether a healthcare provider is honest about mistakes, a patient who has suffered actual harm should talk to an experienced personal injury attorney.
In a medical malpractice case, personal injury attorneys strive to achieve the best possible outcome for their clients. Healthcare providers may be more likely to offer a generous settlement when the patient has legal representation.
