medical malpractice

The four elements of negligence in medical malpractice law are duty, breach, injury, and damages. A medical malpractice attorney must prove that each of these four elements exists to have a winning case.

Medical Malpractice: Negligence

Duty

A duty of care is owed to the patient once a doctor/patient relationship is established. The physician has a duty to act the way other doctors would act in a similar situation and must follow medical care guidelines broadly accepted in the medical community. A relationship is established when you provide medical information to the doctor’s office and verbally to the physician, followed by an examination.

Breach

If a doctor doesn’t follow his duty once the relationship and duty of care have been established; he is in breach of his duty.

Injury

An injury must have been sustained from the breach. Additionally, the medical malpractice lawyer must prove that the doctor’s action or in-action was the cause of the injury.

Damages

The victim must have suffered damages, either economic or non-economic, as a result of the injury. Obvious economic damages could be hospital bills or loss of wages due to time off of work. Non-economic damages may include emotional distress from loss of physical ability due to the injury.

Medical Malpractice: Gross Negligence

While a case of gross negligence must pass the same four tests as negligence, the breach of duty must be so dramatic that the error would have been obvious to anyone, even to non-physicians.

Duty

When a doctor/patient relationship is established through the assignment of a procedure, for example, the physician has a duty to perform his job in a reasonable and careful manner, as any other physician would under similar circumstances.

Breach

When a physician fails to perform his duty, a breach has occurred. For example, when a surgeon reads a chart hastily without evaluating a situation for himself and makes a huge error in treatment.

Injury

The breach must result in an egregious injury such as an accidentally amputated limb or a lack of treatment that causes serious infection leading to tissue damage.

Damages

The plaintiff must be able to show that she has suffered compensable damages. Damages for pain and suffering, mental anguish, and loss of current and future income are all things that can be compensable damages.

Note: Unsatisfactory results are not considered medical malpractice. Suffering an injury while under the care of a physician does not necessarily mean the patient has a case. The physician’s action or lack of action and breach of duty must be the direct cause of the injury for a successful medical malpractice suit.

These types of circumstances could result in the inability to prove medical malpractice:

  • A patient fails to closely implement follow-up care instructions provided by the physician or his office.
  • If a patient was clearly warned of the risk involved with the procedure and authorizes the procedure anyway.

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