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The Physician's Duty of Care
Doctor's owe their patients a duty of care throughout the formal patient-doctor relationship.
Whenever we get injured or fall ill with a life-threatening disease, we depend on hardworking medical professionals to get treated.
Considering that the life and limb of patients rest in their hands, medical professionals must be held responsible whenever they act or fail to act in line with their responsibilities.
With their knowledge and training, they are expected to act professionally and provide care meeting the accepted standards of their profession. This includes everything from exams, diagnosis, surgery and treatment.
Doctors, nurses, and even psychiatrists swear by an oath and are expected to meet their duty of care.
However, human as they are, medical professionals can make mistakes throughout their careers.
Many of these errors are avoidable and some result from overwork and equipment failures.
Before we get into the legal aspect of medical malpractice, we need to understand how it is defined by both lawyers and medical practitioners.
What is Medical Malpractice?
The most basic definition of malpractice is that it’s an act of negligence on the part of the practitioner. Under tort law, negligence happens when there is a failure to observe standard practices that reduce the risk of injury or death. Lawyers also use the same definition when establishing medical malpractice.
Accountability for Medical Malpractice
Even with this definition, it is sometimes difficult to qualify an error as malpractice since there are cases when errors result from unavoidable situations or the action (or inaction) of patients themselves. In any case, medical providers are not allowed to waive liability if they make a wrongful diagnosis or if a procedure goes awry.
Unless you lied to your doctor about your condition or willfully disrupted the course of your treatment, you could file a medical malpractice claim and seek to hold any medical practitioner liable for immediate and future damages.
What Doctors Don't Want You To Know
- According to a 2018 study by John Hopkins University, medical malpractice claimed the lives of 250,000 patients in the United States. The Civil Justice Resource Group meanwhile reported that at least 0.8% to 1% of hospital patients became victims of medical malpractice. [4] [5]
- Mistakes are a fact of life, but they are taken seriously in the medical field where the lives of patients are at stake. Generally speaking, when a doctor prescribes the wrong medicine or a radiologist comes up with a faulty diagnosis, patients have the right to hold practitioners accountable for the injuries resulting from their mistakes. [1]
The hurdle is in determining whether an act or a failure to act amounts to a case of malpractice. How do patients know if an error warrants legal action? What legal challenges do they need to confront in order to get compensated?
Every case is unique, but let's review the guidelines into how victims of medical errors constitutes malpractice and when taking legal action is an option.
"Laws are in place which say that patients should expect to be treated with the care and skill of a reasonably competent doctor..."
- Personal Injury Lawyers
- Auto Accident Injury Lawyers
- Truck Accident Injury Lawyers
- Medical Malpractice Lawyers
- Birth Injury Lawyers
- Slip and Fall Lawyers
- Traumatic Brain Injury Lawyers
- Motorcycle Accident Lawyers
- Workers' Compensation Lawyers
- Pedestrian Accident Lawyers
- Fatal Car Accident Lawyers
- Wrongful Death Lawyers
What Constitutes Medical Malpractice?
If you are experiencing complications or injuries that may have resulted from a medical error, you need to satisfy several legal requirements before making a malpractice claim.
Since medical malpractice is part of tort law, patients like yourself will need to prove that the practitioner responsible for your safety acted negligently.
Review the following elements are present to determine if your claim may potentially be considered malpractice:
- 1. The medical provider has a duty to protect your life and well-being: No matter their field of specialty, medical providers are professionally responsible for the safety of their patients. Their practice is heavily regulated to prevent cases of malpractice and they are trained to follow ethical principles when it comes to making decisions that are appropriate to the individual needs of their patients. The moment you enter a clinic or agree to get treatment, a practitioner already assumes the task of protecting you from risk and ensuring that you get the utmost level of care.
- 2. The medical provider failed to give the level of care expected of them: Since a physician has a duty to protect you from certain hazards, they could be held liable for malpractice if they were unable to follow standard practices directly or indirectly. Either way, there is negligence when the practitioner did less to prevent avoidable situations or at least provide accurate advice.
- 3. There is a link between the injury and the perceived negligence: Another important factor to consider is the causal relationship between the action or inaction of the practitioner with the injury you have incurred. For instance, if you suffered from the side effects of a drug that shouldn’t be prescribed in the first place, you could file a malpractice claim against your physician for issuing such a prescription.
Another instance is when you feel chronic pain in the same area where a surgical procedure was performed. If you feel pain in your left knee even though your right knee was operated on, you may not even have a case of negligence in the first place (unless you establish that the pain in the left knee was directly caused by the operation on the right). - 4. There is a failure to foresee any risks: The concept of foreseeability is crucial in tort law. This involves knowing whether a medical error could have been avoided at the outset. If a surgeon knew about the potential consequences of a new method or procedure but pushed through anyway, a patient could file suit should they indeed experience these consequences. On the other hand, injuries that were never anticipated by the practitioner could absolve them from medical negligence. For instance, if you are getting a wisdom tooth extracted at a dental clinic and a gunshot from outside startles the dentist who then damages your jaw, the dentist may not be the primary defendant in your malpractice claim. [1] [2]
- 5. There are damages in the long-term: The amount of compensation you get depends on the extent of the damages you incurred. Damages as a result of medical malpractice do not only constitute physical injuries and complications. They also include income losses when the patient is unable to work due to a disability or injuries that require an extended hospital stay.
The amount of pain and suffering you had to go through is also factored in. Medical errors can be traumatizing to patients and their loved ones, so it’s important to include emotional damages in the calculation. When the amount of hardship is too much and the practitioner may have acted recklessly before, you can demand punitive damages. This will discourage current and future practitioners from endangering their patients.
Using these criteria, you should be able to determine whether you are in the right position to file a claim against the hopsital or physician.
Medical Malpractice Claim Considerations
If you think you have a solid case which constitutes medical malpractice, consider the following steps towards pursuing accontability.
1. Settle the issue internally
Internal Resolution A medical malpractice claim is a serious issue that can affect the reputation of the defendant whether it’s an institution or an individual. Healthcare providers and hospitals don't want the claims and have an interest in making them go away. They can be expected to invest time and resources to fight to disprove your claims in a legal action.
Before you take any legal step outside of seeking representation, you may need to reach out to the practitioner and see if they can correct the issue. That way, you can avoid a legal battle that can get costly. If the malpractice caused severe harm that can never be corrected, pushing forward with a case may be the only way to hold them fully accountable.
2. Get adequate legal advice from a local law practice
Legal Representation Considering the complexities of tort law, you need to get medical malpractice assistance in the state where the issue happened. Malpractice laws vary from state to state, an attorney with a background in helping patients get compensated and a history of results with malpractice claims is highly recommended.
With their help, you will be able to review the legal merits of your claim and maximize any recovery entitled by law to better reflect the damages you have experienced. They can also help you push your claim before the time limit in the statute of limitations runs out. If a lawsuit isn’t worth pursuing, they can tell you plainly, and save wasted court time and unnecessary costs. If you think you have a solid case, start by checking the local bar association directory or asking for referrals from friends. [6]
3. Gather expert opinions and evidence
Collect Evidence It’s not enough to tell your lawyer and the other side that you are experiencing pain and suffering. You also need to come up with a credible case by gathering enough evidence to prove that there is negligence on the part of the medical provider.
The first thing you will need is a certificate of merit, which can be used to help screen out weak claims. The expert opinion of another doctor may be called upon, whose testimony may help to establish that your health was altered as a result of the physician’s negligence. Your case may include expert witnesses to testify and gather medical records, test results, and receipts. Moreover, your lawyer can also look up medical journals to prove that the physician failed to do adequate research or used the wrong diagnostic and treatment procedures. [3]
Types of Damages
Economic: These are the damages that can be calculated the most easily because they have accountable cash values associated with them. For example, the amount that you paid in medical bills or the dollar value of the wages you lost while injured would both be considered economic damages. Depending on the type of accident, this may also include associated property damage.
Non-Economic: Non-economic damages are those injuries like those discussed in the last section. They are considered to be injuries such as permanent pain and emotional anguish that may have a massive effect on a life, but are hard to quantify into a dollar amount.
In Healthcare There is No Room for Error
Doctors are supposed to know how to keep patients healthy and safe while acting in a reasonbly competetent manner. While reasonable medical errors can happen in the pursuit of healthcare, their actions should meet the duty of care standard.
There is no room for error. Serious harm can result from negligence and doctor mistakes which can leave you disabled for life. When a physician does make a mistake which harms a patient, it should be investigated and if the duty of care was breached, they should be held accountable.
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