Although standards and regulations about medical malpractice can differ among states, the basic requirements to prove medical malpractice in the United States, according to Symposium: Clinical Risk and Judicial Reasoning, involve several important legal elements, and you must be able to demonstrate all of them. Namely:
- A doctor-patient relationship existed: Either by agreement or treatment received.
- A duty or standard of care was established: This duty clearly stated the legal obligation of the medical professional to provide care that meets the standard accepted in the medical community.
- A breach of the duty of care occurred: The medical provider(s) did not uphold his/her/their obligations.
- The breach of care was the primary cause of injury: This injury can be proven by medical records and expert testimony.
- The injury caused damages: This could be medical expenses, pain and suffering, lost wages, or other effects of the injury.
Determining Whether Medical Malpractice Has Occurred
Medical malpractice happens when a patient suffers harm through the actions or inactions of a medical provider. Proving that medical malpractice occurred involves a highly complex area of the law. Sometimes, negligence presents quite clearly. However, according to studies published in BMC Health Services Research, in other cases, the patient’s injury may not manifest immediately following the medical treatment or procedure, making it difficult to attribute it to the medical provider.
In other cases, the journal reports, the medical provider or facility may not disclose mistakes made by the medical provider. As such, when attempting to prove medical malpractice, one must carefully consider both the patient’s medical history and the applicable law, along with the circumstances that led to the injury or illness.
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Types of Medical Malpractice
Examples of medical negligence that could result in an official lawsuit include:
- Unnecessary surgery
- Misdiagnosis, failure to diagnose, or delayed diagnosis. One notable contemporary example is the misdiagnosis of mesothelioma symptoms, which ignited numerous medical malpractice claims and lawsuits in the past years.
- Misreading or overlooking laboratory results
- Surgical error
- Incorrect medication or dosage
- Poor follow-up or aftercare
- Premature discharge.
- Failing to take an appropriate patient history
- Disregarding patient history
- Failure to order appropriate tests or to act on results
- Failure to identify symptoms
The above list represents only a small sampling of the types of medical malpractice that a patient might endure.
Types of Damages Associated with Medical Malpractice
If you prove medical malpractice—and that negligence caused your injuries—you could pursue monetary awards for those injuries, including compensation for the following:
- Loss of income or wages
- Loss of enjoyment of life
- Cost of future medical care
- Pain and suffering
- Disfigurement
- Disability
- Mental anguish and other non-economic damages
A medical malpractice lawyer can help you determine the value of your case, compose a demand letter, and present it to the insurer of the party at fault. They will also help you fight a potential claim denial or the insurance company’s numerous ploys of reducing the compensation you deserve. They will also negotiate on your behalf until you receive the amount that satisfies your needs. If the insurance company does not come up with the correct sum or keeps denying your claim, your attorney will most likely take your case to court.
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What to Do if You Suspect You Suffered from Medical Malpractice
If you suspect that medical malpractice caused your injury or condition, and have reason to believe that a doctor, hospital, therapist, pharmacist, or any other medical practitioner has failed to act in accordance with the requirements of standard medical practice, you should report it to your State Medical Board and seek advice from an attorney experienced in handling medical malpractice matters.
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Time Limitations for Filing a Medical Malpractice Suit
You must take legal action for your medical malpractice within the timeframe established in your state’s statute of limitations. In some states, for example, you must file your claim within two years from the date of the injury. If the injury does not immediately manifest, you can file an official lawsuit two years from the date of discovering the injury, but no more than four years can elapse from the initial date when the negligent act occurred. Act sooner, rather than later, if you suspect you or a loved one is suffering as a result of medical malpractice. You want to allow for enough time to take appropriate action.
How an Attorney Can Help
Medical errors occur, despite preventative measures that healthcare providers may take to avoid such mistakes. According to BMJ, findings from a study at Johns Hopkins suggest that medical errors are the third leading cause of death in the United States, surpassed only by heart disease and cancer.
Medical malpractice involves the complex worlds of both medicine and law, making it extremely challenging to prove. A medical malpractice attorney can move between these two fields, cut through the science and the law, and present your case in the best light possible.
Ben Crump Law, PLLC is ready to help. Call us today at (800) 641-8998 for a free consultation.
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