Medical malpractice occurs when a patient is harmed by a doctor (or other medical professional) who fails to competently perform his or her medical duties. It is a type of personal injury. Your damages for the injury, since it is a tort, can include medical bills, pain and suffering, emotional anguish, loss of wages, and even punitive damages in some cases. A tort is a wrongful act, or violation of a right leading to legal liability.
There are different situations that can be considered medical malpractice. A few are:
A doctor’s failure to obtain informed consent. When you undergo a medical treatment, your doctor is required to obtain informed consent to perform this treatment. In order for the consent to be authentically informed, he must have explained the procedure, any potential risks or side effects, and your other options. If your doctor didn’t obtain informed consent, you may be entitled to legal damages.
A doctors misdiagnosis. Misdiagnosis can count as malpractice if a competent doctor would have discovered the patient’s illness or would have diagnosed differently. If the misdiagnosis injured you, you may be able to file a lawsuit for medical malpractice.
Improper treatment. If a doctor treats the patient in a way that no other competent doctor would, the patient could have a medical malpractice claim. Also, it may also be considered malpractice if the doctor selects a treatment, but administers it incompetently.
To prove that medical malpractice occurred, you must be able to show all of these things:
A doctor-patient relationship existed. For example, you cannot sue a doctor unless there was a relationship. This means you had an agreement: you hired this doctor and he agreed to be hired by you.
The doctor was negligent. Just because you are unhappy with your treatment or results does not mean the doctor is liable for medical malpractice.You must be able to show that the doctor caused you harm in a way that a competent doctor, under the same circumstances, would not have. Remember, the doctor is not required to be the best possible, but simply “reasonably skillful and careful.”
The injury was caused because of the doctor’s negligence. Many malpractice cases involve patients that were already sick or injured. That brings up the question of whether what the doctor did, negligent or not, actually caused the harm.You must show that it is “more likely than not” that the doctor’s incompetence directly caused your injury. Usually, you are required to have a medical expert testify that the doctor’s negligence caused the injury.
The injury led to specific damages. Even if it is clear that the doctor performed below the expected standards, the patient can’t sue for malpractice if the patient didn’t suffer any harm.
Once you are able to show these things, then you may have a medical malpractice issue at hand. It is necessary that you hire a lawyer right away as medical malpractice cases have a statute of limitations.
Your complaint may or may not be taken to trial. Doctors all have medical malpractice insurance, and those insurance carriers will likely want to handle the issue without the courts getting involved. Often, the insurers will offer a lump sum payment as a settlement. If you accept the payment, you will know how much you are actually going to recover in damages, but you must give up your right to sue. If you think that the payment is not reasonable, then you can file a lawsuit.
Because medicine can be subjective, you will want to have several doctors who can determine whether your doctor behaved properly or not. If several other medical professionals believe your doctor acted improperly, this can be grounds to file a medical malpractice lawsuit.
If you believe your situation meets this criteria, feel free to call my office at 619-238-1905. I have over 30 years of experience, as well as over $10 million dollars in awards rendered because of my work.
