When Do Medical Errors Constitute Malpractice?

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Cirignani Heller and Harman LLP

Chicago, IL

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Medical Malpractice

The prospect of medical errors can be frightening for anyone receiving healthcare. A recent analysis by Johns Hopkins found that an estimated 250,000 Americans die each year from medical errors alone. This number places medical errors as the third most common cause of U.S. deaths. These errors can range from something as large as mistakes made during a surgery to something as small as mixing up medications or dosages when treating patients. Note that this 250,000 does not include those who were harmed or disabled by errors but survived the incident.

These mistakes can be devastating for families. Breadwinners for families can be unexpectedly lost or disabled, eliminating their ability to care for their loved ones. Unforeseen time spent in hospitals to recover from medical errors can result in higher bills, and medical bills lead to more than half of the bankruptcies filed in the United States. The emotional costs also cannot be quantified. When someone falls victim to a medical mistake, it is natural to want to know whether they have a case for medical malpractice and what they can expect moving forward. Here is what all patients should know.

What is "the standard of care"?

The term "the standard of care" refers to the care and conduct that a reasonable person would expect from a trained physician under similar conditions. While this definition is broad, it is used to help begin to determine when negligence and medical errors occur and when they can be considered medical malpractice.

When does a medical error become medical malpractice?

Legally, medical mistakes and errors reach the level of medical malpractice when they meet the following four conditions:

� Duty

� Breach of duty

� Harm

� Causation.

The element known as ‘breach of duty' can be viewed largely as synonymous with ‘standard of care.' Juries in legal medical malpractice cases look to see whether the acts of the doctor in question differed greatly from the practices done elsewhere and whether or not this deviation could have been foreseen to cause harm.

In the 1985 case of Hall vs. Hilbun, Chief Justice C.J. Robertson described the obligation of physicians with these words:

"Medical malpractice is a legal fault by a physician or surgeon. It arises from the failure of a physician to provide the quality of care required by law. When a physician undertakes to treat a patient, he takes on an obligation enforceable at law to use minimally sound medical judgment and render minimally competent care in the course of services he provides. A physician does not guarantee recovery… A competent physician is not liable per se for a mere error of judgment, mistaken diagnosis or the occurrence of an undesirable result."

Note the judge's use of the word ‘minimally.' This means that patients do not have the legal right to the highest standard of care, but they do have the right to at least the minimum to be expected from a professional in the field.

What should patients do if they believe they have a case of medical malpractice?

If patients believe they have a case for medical malpractice, they should begin by documenting everything as quickly as possible. The longer they wait after the medical event, the easier it becomes for memories to grow distant or for records to be a challenge to track down. Contact a trusted medical malpractice lawyer who can help review the case and determine whether or not there is a case for medical malpractice. They can then help you gather any other necessary information, including applicable testimonies and records.

Medical malpractice can be a frightening situation when people under medical care find themselves more ill or disabled than they were when they sought treatment. Although patients in the United States generally have access to world-class treatments and technology, they also must be able to trust their physician. Those who believe they have a medical malpractice case should reach out to us today to start the conversation.

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