Proving Medical Malpractice – What Attorneys Consider

Pennsylvania medical malpractice law is complicated, and not everything that goes wrong during a medical procedure is grounds for a valid medical malpractice case. If you have been injured by a medical professional or institution, you should seek the advice of an experienced medical malpractice attorney to see whether you have grounds for a lawsuit to receive compensation

In general, according to Pennsylvania law, medical malpractice occurs when a healthcare professional commits medical negligence by violating the generally accepted standard of care. The medical negligence must be a factual cause of the patient's injuries or harm.

Examples of medical negligence include:

  • Making an incorrect diagnosis, failure to diagnose, or inappropriate treatment for the diagnosis
  • Prescribing wrong medication or dosage
  • Not considering a patient's medical history
  • Surgical errors, doing unnecessary surgery or operating on the wrong body part
  • Laboratory errors or ignoring laboratory results
  • Leaving a foreign object in the body after surgery
  • Errors in anesthesia administration
  • Birth injuries
  • Emergency room injuries
  • Lack of informed consent.

Legal Elements of Malpractice

Attorneys will first consider whether your case fits the requirements necessary to prove there was negligence by the practitioner or institution.

Attorneys do this by examining the facts to see whether certain legal elements are present:

1) The practitioner owed a duty to a patient to provide a standard of care under Pennsylvania law. There was a professional relationship in which the medical professional agreed to provide you with services. This doctor-patient relationship created a duty of care requiring competent treatment.

2) There was a violation of the "standard of care" – the degree of prudence and caution required of a medical professional who is under a duty of care. The practitioner breached the duty of care by performing negligently. There must be a cause and effect relationship between the alleged negligence and harm to the patient referred to in Pennsylvania as "factual cause."

To show this violation, your attorney will have to compare your doctor to other professionals in the field to establish a standard that should have been followed in treating you. This requires testimonies from expert witnesses, such as other doctors who know how the treatment should have been performed in the same situation based on the medical community's standards.

3) The injury was a factual cause of the actions or omission of actions. Attorneys must demonstrate that the actions or lack of actions by the professional worsened your condition or caused you to suffer further harm. It also must be shown that the harm was a factual cause of sub-standard care and was not pre-existing or caused by another issue. There are circumstances under which a claim can be brought for worsening a prior condition.

4) The injury led to damages. Damages are injury and harm you experienced as a result of the medical professional's negligence. They can be monetary or economic damages (such as medical, hospital and rehabilitation bills, lost wages, loss of wage horizon due to the injury or illness) or nonmonetary (such as mental or physical pain and suffering and loss of life's pleasures, disfigurement, society, services, consortium and companionship for a spouse).

Pennsylvania does not have limits to the damages you can seek in a medical malpractice claim, except for limits on punitive damages. Punitive damages are for especially malicious or reckless actions and are limited to two times the amount of actual damages in the claim.

Proving malpractice by a preponderance of the evidence

To win a case, attorneys must provide evidence that it is to a reasonable degree of medical certainty. The standard is a preponderance of the evidence in Pennsylvania. There must be a cause and effect relationship between the negligence and the harm caused which Pennsylvania entitles "factual cause."

Proving medical negligence requires extensive technical expertise by the attorney and usually expert witnesses willing to testify on your behalf. For a successful claim, the burden of proof is on the injured patient.

Attorneys will not take a case unless they feel that the evidence is in the client's favor. Statistics show that over 90% of medical malpractice cases are settled out of court and they rarely go to trial. If the evidence points to the liability of a health care provider, a settlement is often offered, since this avoids the court fees of an actual trial. If both sides in a case agree to a settlement, the provider will pay the agreed amount of money. However, just because other cases settle does not mean your case will settle. Every case is different.

Statute of Limitations

If you wish to file a claim against a negligent medical practitioner, you must act quickly. Pennsylvania has a two-year statute of limitations for filing a medical malpractice claim, so it is important for anyone who suspects medical malpractice to seek legal help immediately. Pennsylvania has a tolling rule. The law concerning the extension of the statute of limitations based upon the discovery of the relationship between the care and the harm is extremely complex. Pennsylvania also has a 7-year statute of repose which may apply in certain circumstances.

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