What is Medical Malpractice?
Medical malpractice occurs when an individual is injured through the negligent actions of a medical professional. When people go to a medical professional for a medical diagnosis, surgery or treatment of an illness they are putting their complete trust in the medical professional. When an individual relies on misinformation given by a physician or his/her staff the patient is under a belief that that information is correct and should be followed.
Although this would be the ideal situation the truth is that physicians and their staff are fallible and can be negligent. In these situations it is good to hire medical lawyers to help in correcting any damage done by the negligence of a medical professional.
Medical malpractice can come in many forms. Medical lawyers are experienced at handling all kinds of medical negligence actions including:
• Lack of Consent – this type of negligence occurs when a physician fails to get the consent, or inform, the patient of a significant side effect, risk, or other factor that may be important in the patients decision making. Lack of consent can be actionable even when it does not result in physical injury. Medical Lawyers have obtained money judgments in medical negligence suits strictly because of the emotional damage resulting from a successful medical procedure that was not properly consented to.
• Breach of contract – Although it occurs infrequently a Medical Layer may be retained when a medical professional has breached a contract with a patient. In any field of medicine the results that are expected are not guaranteed, however, there are situations where the results of a medical procedure fall below that which was promised by the medical professional. This happens most often in plastic surgery cases where the patient contracts with the surgeon for specific action and the result of the surgery falls short of expectations. A Medical Lawyer the non-conforming procedure.
• Misdiagnosis – A Medical Lawyer should be retained when there are allegations of misdiagnosis that are egregious and result in injury to the patient. This can happen because of a number or reasons including failure of the medical professional to keep abreast of current medical information, negligence in handling a patient’s medical charts and negligence in diagnosis.
• surgical malpractice – the most publicized form of medical negligence comes in the form of surgical malpractice. This occurs when a medical professional performs surgery on a patient and because of negligence in the operation, causes the patient to be worse off than when he or she went in for the operation. Horror stories pertaining to operations on the wrong side of the body and leaving medical equipment inside the body of the patient after surgery.
What needs to be proven for medical negligence?
In order to maintain an action for medical negligence a plaintiff, with the help of a Medical Lawyer, must prove that the medical professional had a duty of care; that duty of care was breached by the medical professional; the breach of duty resulted in injury to the plaintiff; and there are damages.
In the medical profession the duty of care owed by a medical professional is on a national standard. This means that the procedures followed by a medical professional must be the generally accepted standards held by the medical community at a national level. Medical Lawyers keep abreast of current trends in the medical community, the AMA, medical journals, and pharmaceutical standards. The Medical Lawyer will attempt to prove that there is an appropriate standard of care associated with a specific medical procedure or diagnosis.
The Medical Lawyer will then attempt to prove that that standard of care was breached by the medical professional. An example of this would be when a medical professional prescribes a specific medication for a patient yet that pharmaceutical product has been recently shown to exhibit high risks of serious side effects and is no longer generally prescribed by the medical community. In proving this the Medical Lawyer will retain expert witnesses, also in the medical field, to show that the medical professional breached his duty of care, by the national standard, by prescribing that medication.
Once it has been proven that the medical professional had a duty of care, and that that duty was breached by the medical professional, the Medical Lawyer must then prove that the injury sustained by the plaintiff was the Actual and Proximate cause of the injury.
Actual cause means that the Medical Lawyer must prove that the injury to the plaintiff was the direct result of the medical professionals’ negligence. This is often called the “but for” test. The Medical Lawyer must show that “but for” the negligence on the part of the medical professional the injury never would have occurred. Difficulties in assessing actual cause come up when there is more than one party involved in an injury. In the case of medical malpractice this is usually not the issue.
Once the Medical Lawyer has proven actual causation he or she must also prove proximate causation. Proximate causation is considered a limitation on liability. Even though it may have been found that the negligence on the part of the medical professional was the cause of the injury it must still be determined whether or not the injury was foreseeable or resulted in unexpected consequences. An example of proximate cause would be when an individual goes in for surgery and, due to a genetic defect that is undetectable, suffers severe complications. The surgery was the actual cause of the injury but because of the complications due to an unknown factor the results may not have been foreseeable and proximate causation may not lie.
Lastly, if the Medical Lawyer has proven that there was a duty, a breach and injury caused by the medical negligence the Medical Lawyer will need to prove damages. Medical Lawyers will present evidence of failure of the plaintiff to work, pain and suffering, loss of lifestyle and other forms of damage that resulted from the injury.
Who can be responsible for medical negligence?
Medical negligence is not confined to the medical professional himself. Actions for medical negligence may be maintained through the actions of the staff of the medical professional. This includes nurses, administrators and even the hospital where a procedure was performed. This is known as the doctrine of “respondeat superior.” It means that if an employee of a business causes injury to another through the course of his or her employment then the injury can be imputed upon the employer. Medical Lawyers will attempt to go up the ladder to impute liability upon the employer ultimately responsible for the injury. It is the job of Medical Lawyers to find the possible defendant with the deepest pockets in order to satisfy a judgment. This often means suing the hospital where a negligent surgical operation or medical care was received.
What qualifications should I look for when seeking a Medical Lawyer?
When seeking representation from a Medical Lawyer in a medical negligence action it is important to search for Medical Lawyers with the proper qualifications. First, a Medical Lawyer should be barred by the state in which the case will be filed. The Medical Lawyer also be specialized in medical negligence cases. The laws and strategies involved in Medical Negligence are very different from those in other personal injury actions and an injured
What to ask a Medical Lawyer
When interviewing Medical Lawyers for representation it is important to ask specific questions to ensure that you have the best representation. Questions a potential plaintiff should have prepared for a Medical Lawyer include:
• Where did you go to law school?
• Do you practice solely in the area of medical negligence?
• Have you been disciplined by any bar association?
• Have you ever been sued for malpractice?
• What was the result?
• Do you hold and certificates indicating specialization in medical malpractice?
• Have you ever handled cases like mine?
• What have been the results?
• What do you see being the result of my case?
Where do I find a Medical Lawyer?
Medical Lawyers are everywhere and through the proper research one should be able to have a list of potential Medical Lawyers within a day or so. Most Medical Lawyers maintain web sites and have advertising in newspapers, magazines and through television. A Medical Lawyer should not be chosen strictly on their advertisements or web pages. Medical representation is important and a choosing the right Medical Lawyer could make the difference in whether a client gets a substantial money award or a case dismissal.
A potential plaintiff should meet with at least 5 medical lawyers in person before deciding on representation. If you are looking for representation the link at the top of the laws.com website will give ample information about information and locations on a number of Medical Lawyers that may be helpful. You can also click on the “find attorneys” tab at the top of the page to compare and contrast possible representation.