What Constitutes Medical Malpractice
Last updated Thursday, December 10th, 2020
Medical malpractice cases have very intricate rules that can vary considerably from one state to another. For this reason, it’s essential to seek advice and representation from a skilled medical malpractice attorney who has a wealth of experience in handling medical malpractice issues. Medical malpractice is the area of personal injury law that provides an avenue for harmed or injured patients to recover compensation for the losses they have incurred due to substandard care by a medical professional. So, just what constitutes medical malpractice?
Medical malpractice liability occurs all the time and arises out of a multitude of situations. When a physician, hospital, or other health care professional, through either a negligent act or a failure to act, causes injury or harm to a patient, those health care providers may be held liable in a court of law.
Common Malpractice Circumstances
There are so many examples of what constitutes medical malpractice. Some of the more common circumstances include:
- A misdiagnosis or failure to diagnose
- A breach of doctor-patient confidentiality
- Not ordering proper laboratory tests
- Misreading or ignoring lab test results
- Unauthorized treatment or lack of informed consent
- Performing unnecessary surgery
- Errors in surgery
- Prescribing improper pharmaceuticals
- Giving the wrong dosage of medication
- Premature discharge from a medical facility
- Poor follow-up care
- Not recording or taking an improper patient history
- Delayed treatment
There is a common misconception about what constitutes medical malpractice. While it’s true that a medical malpractice lawsuit may be brought against a surgeon or physician, those kinds of cases are not the only types of medical malpractice issues. Actually, any medical professional who provides care can come under scrutiny for malpractice liability.
Unfortunately, negligence in this arena goes beyond the boundaries of the physician. Errors are often also made by medical assistants, anesthesiologists, nurses, dentists, pharmacists, radiologists, lab technicians, and hospital personnel, to name only a few.
Understanding Standard Of Care In Medical Malpractice Cases
Standard of care is an important concept to understand if you’re thinking of filing a medical malpractice lawsuit. There are many factors that go into determining whether or not a healthcare provider is liable for medical malpractice. The standard of care is one of the most important of those factors.
As much as we would wish it otherwise, doctors are not infallible. They can make a mistake just like anyone else can. The difference here is that doctors are responsible for the well being of a person. Therefore, if they make a mistake, the consequences of that mistake have the potential to be much more severe.
What Is Standard Of Care And How Does It Relate To Medical Malpractice Lawsuits?
Medical malpractice lawsuits can proceed if they can show that a medical provider’s standard of care was significantly less than it should have been. Or, if it was negligent. The standard of care is determined by what a patient should expect as a reasonable level of care in their specific circumstances.
If a doctor failed to provide a reasonable level of care that another doctor would have been able to provide under the same circumstances, then he or she could be found liable for malpractice.
For example, if a doctor performing surgery made a mistake that resulted in the injury of a patient, they may be liable for malpractice. If the mistake is found to be a mistake that most other medical professionals wouldn’t make in similar circumstances, then they did not provide an acceptable standard of care.
To Prevail In A Medical Malpractice Lawsuit The Plaintiff Has To Show How Substandard Standard Of Care Caused Them Injury
If a doctor provides substandard care, that’s part of the basis that can be used to file a lawsuit. But, it’s only the first part of the process. To prevail in a medical malpractice lawsuit, the plaintiff in the case will have to show that a doctor failed to provide an acceptable standard of care. Plus, how the doctor’s actions impacted them. If a doctor makes a medical mistake that has a negligible impact on the patient, then their liability is will greatly diminish.
Some Medical Specialists Have A Higher Standard Of Care Expectation
Did you know that certain medical specialists have to uphold a higher standard when it comes to the care that they provide to their patients? These specialists spend a lot of time learning about their specific niche in the medical field. As such, they should provide superior care than a regular doctor would in this specific field.
Can You Sue A Hospital For Medical Malpractice?
Being able to sue a hospital for medical malpractice will require several important things to line up correctly. If you have suffered harm due to the negligent practices of a hospital it’s natural to want to hold them accountable.
You have the right to be compensated if negligent medical treatment caused you harm and you should exercise that right. It’s often through lawsuits that positive changes happen, since a lawsuit impacts the bottom line of hospitals, forcing them to improve to avoid similar situations in the future.
With all of that being said, you may be able to sue a hospital over negligence, but even if you can’t there are other options you could pursue.
Before You Sue A Hospital You Need To Be Sure That You Suffered Harm Due To Negligent Medical Treatment
Before you start planning to sue a hospital you first need to determine if there was negligent action on the part of anyone who gave you treatment. Negligence, as it pertains to medical treatment, means that a patient suffered harm due to substandard care.
Medical negligence occurs when a doctor or other medical professional makes a mistake that most other doctors under similar circumstances wouldn’t make.
Doctors Usually Aren’t Employees Of Hospitals
Most people don’t know this, but most doctors who work at hospitals aren’t actually employees of the hospital . They are classified as independent contractors. Independent contractors aren’t hospital employees. Therefore, if they make a mistake the hospital is usually not liable for their actions.
Does that mean that if a doctor is negligent while treating you in a hospital that you have no recourse? No, you can always sue the doctor directly for medical malpractice.
Hospitals Are Responsible For The Actions Of Their Employees
While most doctors are officially classified as independent contractors, the other people working in a hospital are employees. That includes nurses, support staff, and even maintenance people. If you suffer harm due to negligence from a hospital employee you can sue the hospital.
Hospitals are responsible for the actions of their employees. For example, if a nurse accidentally gives you the wrong medication or the wrong dose, this would be negligent if you were harmed as a result. Since hospitals are responsible for the actions of their employees, you could sue a hospital for negligence in this instance.
It’s not always easy to prove negligence in medical malpractice issues which is why, when pursuing a claim for compensation, it’s so important to work with a professional medical malpractice attorney.
Can You Sue A Doctor For The Wrong Diagnosis?
If you want to file a medical malpractice suit you need to prove that negligence has occurred. While we might wish it otherwise, doctors are human, and like all humans, they make mistakes.
Mistakes made by doctors tend to be more visible because they are dealing with people’s lives. For example, if you take your car to the shop when it breaks down and the mechanic misdiagnoses the problem, it’s an irritation.
On the other hand, when you go to the doctor because you think you have heartburn but you’re really having a heart attack, that’s a life or death moment. That’s a situation where a doctor’s error can cost someone their life.
When A Doctor’s Conduct Become The Basis For A Medical Malpractice Lawsuit
If you want to sue a doctor for malpractice you need to show that they were negligent. Negligence means that the doctor you have seen failed to provide you with an acceptable standard of care. This is defined by how the doctor who treated you compares to other doctors who may have treated you in similar circumstances.
For example, if you go to a doctor complaining of chest pains, they should immediately be concerned that it could be your heart. Depending on your history this could result in you having an ECG done to measure your heart’s electrical activity, as well as bloodwork to determine if there are indicators that you’ve had a heart attack.
Now, if you go to a doctor suffering from a heart attack, and they give you an antacid and fail to check on your heart, the doctor would be considered negligent.
On the other hand, if a doctor is treating a patient who has a condition that cannot be cured, then they are not generally liable for medical malpractice. You also can’t sue a doctor who is following proper protocols and despite that, the patient still takes a turn for the worse.
If A Doctor Behaves In A Reckless Manner This Could Also Be Grounds For A Lawsuit
While most medical malpractice lawsuits are a result of negligence, there are also some cases when a doctor behaves in a reckless manner and could be sued as a result. For example, if a doctor performs surgery on you while they are under the influence of drugs or alcohol, this would be considered reckless behavior. It takes some investigating to be really clear about what constitutes medical malpractice in each particular instance.
What Can You Expect From A Dental Malpractice Settlement?
If you have suffered as a result of a dentist’s negligence, then you may be able to file a lawsuit that can lead to a dental malpractice settlement. Dentists, orthodontists, and oral surgeons are all held to the same standard as medical doctors in terms of being liable for negligence.
The fact that dentists and similar oral health professionals are held to the same standard as medical doctors is a good thing for patients. If a dentist makes a mistake while working on your teeth, it can have lasting effects.
While many of those effects can be repaired, the cost, time spent on the repairs, and pain and suffering that a patient has to go through can be significant.
What Is The Basis For A Dental Malpractice Lawsuit?
With how common lawsuits are today, you might think that you can sue anyone for anything. However, this is not the case. Therefore, if you’re interested in filing a malpractice suit against your dentist, you are going to have to be clear about what constitutes medical malpractice, and be able to prove certain criteria.
What are those criteria?
- The person filing the lawsuit must prove that they were a patient of the dentist they’re suing. This first point isn’t usually disputed.
- An appropriate standard of care will also have to be established. Standard of care is the level of care that a patient could have reasonably expected to receive in their situation. One way to look at this is to look at how an average dentist in the same circumstances would have treated a patient.
- It will also have to be determined how the appropriate standard of care was breached.
- The final thing that will have to be established is how the patient was injured and how extensive the injury was.
How A Dental Malpractice Settlement May Be A Better Option Than Going To Trial
If you feel that you are the victim of dental malpractice then the first thing you should do is speak with a lawyer. An experienced lawyer can look at the circumstances of your case and help assess what constitutes medical malpractice in your particular circumstance, as well as tell you if you have the grounds for a lawsuit.
Just because you feel you have the right to sue someone doesn’t mean that you do. That’s why it’s so important to have a lawyer examine the facts of your case for you.
After filing a lawsuit you may be presented with a settlement offer. If this happens this is good news. If the lawyer representing the dentist you’re suing is willing to make a settlement offer, it means that they recognize that your case has merit. They aren’t going to offer you money otherwise.
What you have to do now is discuss the offer with your lawyer to figure out how you should proceed. Could you get more money at a trial? Yes. Could you also lose your case and get nothing? Yes.
Listen to the advice of your lawyer and let them know your expectations. It’s also important to keep in mind the initial offer you receive should be viewed as a starting point. Your lawyer should be able to negotiate to increase the offer.
How To Prove Medical Malpractice: Why You Need A Lawyer
If you want to prove medical malpractice, the first thing you need to understand what constitutes medical malpractice and for that you are going to need an experienced lawyer. Proving medical malpractice is complicated and it’s something that the average person is ill-equipped to do.
Even if you strongly suspect you were the victim of medical malpractice, getting fair compensation will be an uphill battle without a lawyer. No insurance company or lawyer representing a medical professional that you want to sue will just hand you money. You’ll have to fight for it and that’s why you need an experienced lawyer on your side.
What constitutes medical malpractice | How To Prove Negligence:
If you want to sue for medical malpractice, you’ll have to prove negligence. That means that you’ll have to show that the care that you received was substandard compared to what you should have been able to reasonably expect.
As a general rule of thumb, you should ask if the care you received is comparable to what other doctors would have provided under similar circumstances. If it was not, then you may have grounds for a medical malpractice lawsuit.
Here’s what your lawyer will help you to prove so you can proceed with your lawsuit:
- Your lawyer will help you to show that a doctor-patient relationship existed. This is the easiest part of the process.
- Your lawyer will help you to show that your doctor was negligent. Negligence can involve both an improper diagnosis and/or improper treatment. To sue for negligence, you’ll have to show how your doctor’s mistakes harmed you and that the doctor’s actions were consistent with the standard of care you would have received from another doctor under similar circumstances.
- Also, your lawyer can help you to show that the negligent actions of your doctor caused your injury.
- You’ll also need to demonstrate what specific damages you suffered as a result of your doctor’s negligent actions. This can include temporary or permanent disability, physical pain, mental anguish, and any additional medical bills you had to pay to treat the damages your doctor caused.
Your Lawyer Can Advise You On Who You Should Be Filing A Lawsuit Against
Another reason that you’ll need the help of an experienced lawyer when filing a lawsuit for medical malpractice is deciding who you should be filing that lawsuit against. You need to determine both what constitutes medical malpractice, and who was at fault that led to you suffering as a result.
Was it the doctor who prescribed the wrong medication? Or was it a nurse who mistook what the doctor wanted and gave you the wrong dosage? Then you have to figure out if the doctor was an independent contractor or an employee of the facility.
Proving medical malpractice takes time and effort and to prevail, you’ll need a good lawyer. If you are the victim of medical malpractice, you deserve compensation. Plus, the people who gave you improper care need to be accountable. The only way this will happen is if you find a good lawyer.
If you’ve been injured or a loved one was killed by the negligence of a medical professional, call 800.722.9744 today for a FREE consultation with an attorney at the Law Offices of Shuman legal