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Medical Malpractice - An Overview
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When illness
or injury forces you to see a physician or go to the hospital, you can
generally be assured that the doctor's years of experience and
training will result in excellent treatment of your ailment. But in
truth, physicians are only human and as such, errors are always
possible. Medical malpractice occurs when a negligent act or omission
by a doctor or other medical professional results in damage or harm to
a patient.
Negligence by a medical professional could include an error in a
diagnosis, treatment, or illness management. If such negligence
results in injury to a patient, a case could arise against the doctor
if his or her actions deviated from generally accepted standards of
practice; against the hospital for improper care, such as problems
with medications, sanitation or nursing care; or against local, state
or federal agencies that operate hospital facilities.
Medical malpractice laws are designed to protect patients' rights to
pursue compensation if they are injured as the result of negligence.
However, malpractice suits are often complex and costly to win. While
theoretically, you can seek compensation for any injury caused by
negligence, regardless of its seriousness, time and money make it
unrealistic to sue for an injury that is minor or resolves quickly.
Therefore, if you believe you have a medical malpractice claim, it is
important to consult with an attorney who can help you determine
whether your claim is worth pursuing. |
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Theories of Liability
in Malpractice Cases |
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Negligence: Most malpractice cases proceed under the theory
that a medical professional was negligent in treating the patient. To
establish medical negligence, an injured patient, the plaintiff, must
prove:
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The existence of a duty owed by the health care professional to the
plaintiff (for example, a doctor/patient relationship);
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The applicable standard of care, and the health care professional's
deviation from that standard, which is deemed a breach of the duty
owed
the patient;
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A causal relationship between the health care professional's deviation
from
the standard of care and the patient's injury;
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Injury to the patient.
One of the most important aspects of a medical malpractice action is
establishing the standard of care to be applied to the health care
professional. Medical professionals are often heard to refer to
medicine as an art, rather than a science, and although errors in
judgment may result in injury to a patient, not all medical errors are
actionable as negligence.
To find a medical professional legally at fault, it must be shown that
his or her conduct fell below a generally accepted standard of medical
care. To establish the standard to be applied, a plaintiff must
present the testimony of another medical expert, qualified in the same
area of medicine as the defendant, indicating what standard, or level
of care, is commonly met by those recognized in the profession as
being competent and qualified to practice. The plaintiff will have to
present expert testimony not only as to the applicable standard of
care, but establishing that the defendant failed to meet this
standard.
Another element of in medical malpractice actions, causation, is
sometimes challenging to establish. Specifically, the plaintiff must
show that his or her health care provider's deviation from the
applicable standard of care resulted in his or her injury. This is
challenging because sometimes, the health care provider's deviation
from the standard of care may not have caused the plaintiff's eventual
injury, and vice versa.
If an injured patient does not know exactly what caused his or her
injury, but it is the type of injury that would not have occurred
without medical negligence, he or she might be able to invoke a legal
doctrine known as "res ipsa loquitur," which shifts the burden of
proof to the health care professional, to show that he or she was not
negligent. |
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Negligent Prescription of Medications or
Medical Devices |
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professional may be held liable for the negligent prescription of a
medication or medical device if he or she ignored the manufacturer's
instructions, or prescribed an incorrect medication or dosage, which
resulted in injury to the patient. In some cases, a pharmaceutical
manufacturer may be liable where a drug caused a patient injuries, but
only if the manufacturer failed to warn of potential side effects or
dangers of the drug. In most cases, the prescribing physician is
considered a "learned intermediary," which means that because of his
or her superior medical knowledge, and the fact that he or she has
been given adequate information from the manufacturer, he or she is in
the best position to determine whether a particular drug or device is
appropriate for a patient. Thus, the physician has the primary duty of
advising the patient of the risks and side effects of a medication or
medical device he or she prescribes. |
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Informed Consent |
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| In many
situations, the failure to obtain a patient's "informed consent"
relative to a procedure or treatment is a form of medical negligence,
and may even give rise to a cause of action for battery. Although the
specific definition of informed consent may vary from state to state,
it means essentially that a physician (or other medical provider) must
tell a patient all of the potential benefits, risks, and alternatives
involved in any surgical procedure, medical procedure, or other course
of treatment, and must obtain the patient's written consent to
proceed. |
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| Breach
of Contract or Warranty |
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| Although
doctors very rarely promise specific results from procedures or
treatments, in some cases they do, and the failure to produce the
promised results may give rise to an action for breach of contract or
breach of warranty. For example, a plastic surgeon may promise a
patient a certain result, which result may be judged more easily than
other types of medical results, simply by viewing the patient.
Similarly, if a patient is not satisfied with the outcome of a
procedure, and the physician had guaranteed or warranted a certain
result, the patient may attempt to recover under a theory of breach of
warranty. |
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Legislation Affecting
Malpractice Actions |
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| Due to the
power and resources of the health care industry, many states have
passed legislation making it more difficult to bring and prevail in
medical malpractice actions. In most states today, physicians and
hospitals are protected by legal limits, called "caps," on the amount
of damages and attorneys' fees that can be awarded in malpractice
suits. Also, most states have a two-year time limit for filing
malpractice actions, unless extraordinary circumstances affect the
case. |
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Certificate of Merit |
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| One obstacle
plaintiffs in many states may have to overcome before they can even
file a malpractice action against a health care professional is the
requirement that they file what is commonly known as a "certificate of
merit." In order to file a certificate of merit, a plaintiff will
first have to have an expert, usually another physician, review the
relevant medical records and certify that the plaintiff's health care
provider deviated from accepted medical practices, which resulted in
injury to the plaintiff. The plaintiff's attorney then files the
certificate of merit, which confirms that the attorney has consulted
with a medical expert and that the plaintiff's action has merit. |
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Potential Defendants |
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malpractice can be committed by several types of health care
professionals and, in a case where a hospital employee commits
malpractice, the hospital itself may be held liable under the legal
doctrine of "respondeat superior." Under this theory, an employer may
be held liable for the negligent acts of its employee if the employee
was acting within the scope of his or her employment when the
negligent act or omission occurred. This doctrine is very important to
plaintiffs in medical malpractice cases, because it helps ensure there
will be a financially responsible party to compensate an injured
plaintiff. In some situations,
commonly involving attending physicians working in hospitals, health
care providers are considered independent contractors rather than
employees, which makes the doctrine of "respondeat superior"
inapplicable. What this means is, if a doctor or other health care
professional an independent contractor, and commits malpractice while
treating a patient in a hospital, the hospital cannot be held liable
for the doctor's negligence. However, the hospital can be held liable
for its own negligence, for example, in granting attending privileges
to an unlicensed or incompetent physician. |
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Conclusion |
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| In general,
there are no guarantees of medical results. An unanticipated or
unsuccessful result from medical treatment or surgery does not, in
itself, mean that medical malpractice has been committed. Nonetheless,
if you believe you may have been the victim of medical malpractice,
you should meet with an experienced attorney as soon as possible to
discuss the facts of your case and receive a professional evaluation
of your situation. |
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