When Can I Claim Medical Malpractice?
Simply stated, medical malpractice occurs when a patient is harmed by a doctor (or other medical professional) who has failed to competently perform his or her medical duties. Although specific rules vary by state, there are some basic medical malpractice principles that can be applied anywhere.
Medical malpractice overview
Basic requirements for a medical malpractice claim
Your lawyer must prove all the following points:
A doctor-patient relationship existed. This means that you hired the doctor for medical advice/treatment and the doctor agreed to be hired. If a doctor took you on as a patient, then the relationship is easy to prove. The situation is usually only complicated if there was a consulting physician who did not treat you directly.
The doctor was negligent. Medical malpractice means that the doctor was not reasonably skilled, competent or careful in their diagnosis or treatment of your case. Further, you must prove that this misdiagnosis or erroneous treatment caused you harm that a different doctor would not have caused. It is not enough to say that you are not happy with the outcome or that their care was not the best possible available. In most states, your lawyer will need to present a medical expert to show what standards of treatment would be considered reasonably skillful and careful with regard to your case.
The doctor’s negligence caused the injury. Since most people go to a doctor when they are already sick, it is imperative that the doctor’s negligence caused the injury, not the illness itself. For example, if a patient dies after being diagnosed with brain cancer but the doctor didn’t try a reasonable course of treatment to cure it then he could be deemed negligent. Again, your attorney will likely be asked to present a medical expert to testify that the doctor’s negligence caused the death or injury.
The injury led to specific damages. It is not enough to prove that the doctor’s performance was below a reasonable standard of care; you must have experienced harm from the negligence. Harm can include physical pain, unnecessary medical bills, additional lost work and earning capacity, and mental anguish.
Common types of medical malpractice
Although there are quite a few situations that could be deemed a legitimate medical malpractice case, most claims fall into one of the following three categories:
Failure to diagnose. It starts with a diagnosis. If a different and more competent doctor would have discovered the illness or made a different or more accurate diagnosis, which would have then led to a better outcome than what was achieved, then the patient may have a viable medical malpractice claim.
Improper treatment. If the patient is treated for an illness in an incompetent way, or in a way that no reasonable doctor would treat for that illness then you likely have a claim. You may also have a claim if the correct treatment was chosen but administered incorrectly and therefore caused harm.
Failure to warn a patient of known risks. A physician is required to warn patients of known risks of a surgery, procedure or drug; this is called the duty of informed consent. If the patient would have requested an alternate treatment had they known about the risks, the doctor could be held liable if the treatment causes injury that should have been communicated.
Many states have specific rules for medical malpractice including limits on damages, requirements to submit your claim to your doctor or a medical malpractice review panel before filing with a lawyer, and strict time frames for filing from the date of the injury or from the time a patient could have known about the injury.
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