When Can I Claim Medical Malpractice?
Simply stated, it is medical malpractice 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
The plaintiff must prove all the following elements to prevail upon an action of negligence, typically with the help of a medical malpractice lawyer:
1. A duty of care. A healthcare provider takes of a duty of care to his or her patients. Proving that there was a duty of care is usually shown through the existence of a doctor-patient relationship when the patient received healthcare services. The situation is usually only complicated if there was a consulting physician who did not treat the patient directly.
2. The healthcare provider was negligent. Medical malpractice means that the doctor was not reasonably skilled, competent or careful in their diagnosis or treatment of a patient’s healthcare needs. The plaintiff must prove that this misdiagnosis or erroneous treatment or lack of treatment caused harm that a different doctor would not have caused. Note that an unsatisfactory outcomes is not enough to prove negligence. In most states, your lawyer will prove a deviation from the accepted standard of care by presenting the testimony of an expert medical witness.
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 employ a reasonable course of treatment then he could be deemed negligent. Medical malpractice attorneys must 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; the patient must have suffered specific damages as a result of negligent care. Damages include physical pain and suffering, medical bills, lost work and earning capacity, disability, disfigurement and mental anguish.
Common types of medical negligence
Most medical malpractice 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 and the treatment caused harm then the patient may have a sizeable medical malpractice claim. Patients may also have a negligence case 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 the known risks of a surgery and undergoing anesthesia, 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 offered causes injury.
Many states have specific rules for medical malpractice/negligence claims including limits on damages and requirements to submit your claim to your doctor or a medical malpractice review panel before filing with a lawyer. There are also strict time frames for filing a case from the date of the injury or from the time a patient could have known about the injury. An experienced medical malpractice lawyer will be able to discuss your legal rights.
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