The Soups and Nuts of Medical Malpractice

Medical Malpractice

Each year, millions of people seek help from medical practitioners and healthcare providers to maintain or improve their health. When these people become patients, they place a certain level of trust in the medical professional who are providing them treatment that the care which they receive will be above a certain standard. There are times, however, when medical mistakes unfortunately occur as a result of the negligence of the medical personnel treating the patient. When one of these mistakes occur it can have a detrimental effect on the patient's health as well as lead to the need for more expensive medical treatment to rectify the injury which the patient suffered.

What is Medical Malpractice?

Medical malpractice occurs when a healthcare provider or medical practitioner's standard of care falls below and acceptable standard arising to a level of negligence in the treatment of a particular patient. There are several ways in which medical malpractice can occur. The failure to diagnose or the misdiagnosis of a condition, failure to provide an acceptable level of treatment for a medical condition, and an unreasonable delay in providing treatment for a medical condition. Examples of medical malpractice include: medical misdiagnosis of a disease or ailment, misreading lab test results, failure to order proper testing, unnecessary surgery, improper medication, improper dosage of medication, premature discharge, failure to take into account patient history, and failure to detect and diagnose symptoms.

There are several elements which must be met in a medical a malpractice claim. To prevail in a medical malpractice action, the plaintiff must prove: 1) that the medical practitioner owed the plaintiff a duty to provide a certain level of care, 2) the medical practitioner breach this duty by providing a lower quality of healthcare than the acceptable standard, 3) that the plaintiff suffered injury and the breach of the duty of care by the medical practitioner was the cause of the injury, and 4) the plaintiff suffered damages, either physical, financial, or emotional as a result.

It is important to note that simply being dissatisfied with the medical treatment one receives or medical practitioners not providing the best possible medical care currently available generally does not rise to the level of medical malpractice which would give a patient the right to sue for damages. So long as medical personnel performed in a reasonable skilled and careful manner in providing treatment to the patient, the patient does not have a medical malpractice claim against the medical practitioners. However, if a medical practitioner's care falls below the care which a competent and skilled medical practitioner would have provided, this allows the patient to satisfy the standard of care element necessary to prevail in a medical malpractice claim.

There is one type of medical malpractice where a medical practitioner does not have to make any mistakes nor does the standard of care which this medical professional provided have to fall below a certain standard for a medical malpractice action to be brought. This can occur in instances where a medical care provider failed to warn of known risks of injuries which the patient could incur through the medical treatment; this type of medical malpractice claim can also be called failure to receive informed consent. Patients have a right to know of the risks which they are being subjected to when having medical procedures performed. This allows patients to make informed decisions as to whether or not they want to have certain procedures done. Therefore, if a medical practitioner fails to warn a patient of dangers inherent to the medical procedure and a patient suffers an injury, the medical care provider's failure to obtain informed consent can place the medical care provider at risk of being sued even if the standard of care which he or she provided is that which would not be considered negligent.

Medical Malpractice and State Law

The laws of the state in which a person resides can have a significant impact on medical malpractice claims within that state. Many states require that a perspective plaintiff in a medical malpractice action first submit his or her claim to a medical malpractice review panel; a panel of experts review evidence and testimony and make a decision as to whether or not malpractice has occurred before the plaintiff can take the case to court.

Furthermore, most states have a statute of limitations on filing a medical malpractice action which can vary from state to state. Some states allow a very short period of time to file a claim for medical malpractice, and the longest time period generally allowed for the filing of a medical malpractice claim is usually two years. Additionally, whether the time period for the filing of the medical malpractice action begins when the act of malpractice occurred, or the time period starts when the patient should have discovered the injury, can vary from state to state. Therefore, it is important to note the time in which you can file a medical malpractice action in your state.

Moreover, many states have a limit or cap on the dollar amount of a jury award or settlement which a patient can receive in a medical malpractice action. To protect medical professionals, facilities, and insurance companies from being liable for huge sums in a field where the inherent risks involve people's health, safety, and lives, a number of states have placed an upper limit to the amount of compensation a patient can receive.

Filing a Medical Malpractice Lawsuit

Filing a medical malpractice action against a healthcare provider or medical practitioner can be very expensive. In fact, many medical malpractice cases can cost over $100,000 to litigate. The plaintiff and his or her attorney bares the costs of hiring medical experts with the technical knowledge to give testimony in the case; the testimony of an expert is often required to prove medical malpractice except in limited circumstances. For this reason, most medical malpractice attorneys take cases on a contingency basis; in a case taken on a contingency basis, the attorney receives a percentage of the settlement or verdict as payment for services rendered instead of taking fees upfront on retainer. Because the majority of medical malpractice cases are taken on contingency, this allows plaintiffs who otherwise would not be able to afford the costs of litigation to pursue compensation when they have been a victim of a medical error.

Hiring a Medical Malpractice Attorney

Medical malpractice cases are often very complicated, involving medical experts with specialized knowledge, insurance companies, and a number of interested parties including the medical practitioner and the medical facility, therefore, it would it would be wise to seek the counsel of an experienced medical malpractice attorney when filing a medical malpractice action. There are several things you should look at when deciding to hire a medical malpractice attorney. Some of the things you want to take note of include: does the attorney have experience with medical malpractice cases; does the attorney have experience with your specific type of medical malpractice case; does the attorney have the funding a resources available to get the case to trial; and how many medical malpractice cases has the attorney taken to trial.

Medical Malpractice and the Medical Profession

There has been a significant amount of discussion lately concerning medical malpractice and medical malpractice reform. Many believe that both doctors and other medical professionals as well as patients who have been injured by medical error could benefit from medical malpractice reform. This is because medical malpractice lawsuits are having a significant impact on the medical profession. Some believe that the high cost of insurance doctors must pay have made healthcare increasingly inaccessible to patients. Furthermore, many medical professional may be steering away from riskier practice areas to safer practice areas to avoid malpractice claims.

Joanna Schwartz, assistant professor of law at UCLA responds to the claim that medical malpractice suits are hindering the medical profession. In a letter appearing in the New York Times Opinion Pages May 16, 2013 she states, "[Schwartz's] study also shows that malpractice suits are playing an unexpected role in patient safety efforts, as a source of valuable information about medical error. Over 95 percent of the hospitals in my study integrate information from lawsuits into patient safety efforts. And risk managers and patient safety personnel overwhelmingly report that lawsuit data have proved useful in efforts to identify and address error."

Philip Howard, Chairman of Common Good, a government and legal reform coalition, states in his May 17, 2013 letter to the editor of the New York Times that there are numerous flaws with the current medical malpractice system. These flaws include claims that it is "absurdly slow and inefficient for injured patients, taking an average of five years to settlement and consuming over 50 percent of awards in attorney's fees and administrative costs."

The president of the American Medical Association also responds to Professor Schwartz's claims by stating, "The current system creates a contentious atmosphere that some physicians are discouraged, even by their own attorneys, from offering an honest apology to a patient when a mistake occurs. Until we rein in the nation's broken medical system – and the fear and mistrust it fosters – we will continue to see physicians afraid to share bad news with patients."

Therefore, there are those on both sides of the debate regarding the current interaction between law and medicine and what affect it is having on the medical profession. Still, medical malpractice is one of the most regulated areas of the law. Therefore, anyone who believe that he or she has been a victim of medical malpractice should seek the advice of a qualified attorney to find out his or her options for pursuing the claim.

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