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What is medical malpractice?
Medical malpractice is negligence committed by a professional health care provider-a doctor, nurse, dentist, technician, hospital, or hospital worker-whose performance of duties deviates from a standard of practice of those with similar training and experience, resulting in harm to a patient or patients. Most medical malpractice cases are based on the concept of negligence-that is, the patient was harmed because the health care provider failed to meet the required standards of skill and care, in accordance with generally accepted standards. The prescribed standard of medical care may vary from state to state. Because health care providers cannot guarantee the results of medical treatment, a patient's malpractice claim is not valid just because his or her treatment was not successful.
How is a medical malpractice case proved?
To establish a prima facie (on the face of it) case of medical malpractice, the claimant must present expert medical and non-medical (i.e. financial expert) testimony verifying the claims of negligence and request for economic damages, unless the negligence can be inferred from the facts.
How are medical malpractice cases analyzed?
The basic elements involved in medical malpractice, as in common negligence, are establishment of a standard of care, proving a breach of that standard of care, legal causation, and damages.
Generally, standard of care is defined as how a reasonable, careful or prudent person would behave in similar circumstances. In general, all people have a duty to avoid creating foreseeable, unreasonable risks of harm to others.
Breach of that standard of care occurs when someone deviates from that standard of care and creates a foreseeable, unreasonable, risk of harm. Causation and damages are often intertwined and can be difficult to separate. A legal cause of action for negligence usually exists when it is determined that the breach of the standard of care proximately caused damages, usually physical or emotional in nature to the victim.
These same issues, standard of care, breach of the standard of care, causation and damage also apply in a case involving medical malpractice. However, the elements of a negligence cause of action are tailored to the medical or health care setting. Therefore, in determining whether medical malpractice exists, the questions become: 1) how would a reasonable, careful and prudent doctor, hospital or other health care provider behave in the same or similar circumstances; 2) did the doctor, hospital or other health care provider breach that standard of care in this specific situation; 3) was the unreasonable, careless or inappropriate behavior on the part of the doctor, hospital or other health care provider the proximate cause of 4) injury or damages to the patient or client?
To prevail in a medical malpractice case, all of the above elements must be proven. The failure to establish even a single element will prevent the successful outcome of a medical malpractice suit.
What does statute of limitations mean?
The legislature of each state has determined and placed into the state's laws the maximum time after the commission of a civil wrong that a lawsuit may be brought. In general, a medical malpractice case must be filed with the court, no later than two to four years after the commission of the malpractice. Regardless of how strong the malpractice claim may be, if the suit is not initiated with the statute, then the suit cannot be brought.
For example: In January of 1999, John went into the hospital to have surgery done on his stomach. During the surgery, the doctor negligently left a rubber strap inside John's stomach. The rubber strap resulted in a stomach infection that required intensive medical attention and prolonged hospitalization. If the statute of limitations for medical malpractice suits is three years from the time of the malpractice, then John must file suit with the court no later than January of 2002. If John decides to file suit in January of 2003, then his suit will be barred from being brought due to the statute of limitations.
What is Vicarious Liability?
When a person is held responsible for the tort of another even though the person being held responsible may not have done anything wrong. This is often the case with employers who are held vicariously liable for the damages caused by their employees, such as the event of hospitals and physicians. One can make the assumption that a physician is an employee of the hospital without making an inquiry as to whether or not the physician is actually an employee of the hospital. Therefore, the hospital could be held accountable for any of the physician's actions, without having done anything wrong.
How do I begin a medical malpractice lawsuit?
If you think that you have a valid medical malpractice lawsuit, it is wise to seek out an attorney who specializes in medical malpractice. Medical malpractice is an extremely complicated are of law that raises many complex and intellectually difficult legal and medical issues. Due to the heavy reliance upon medical experts, the cost involved in bringing a successful medical malpractice suit is very high. Most attorneys who specialize in medical malpractice will provide a free initial consultation to determine whether the case is worthy of further investigation. Most malpractice specialists have a number of experienced experts who can determine not only whether the case is viable, but also how difficult the case will be to try before a jury.
The lawyers at Reich & Binstock have many years of experience in trying medical negligence cases. Over the years, they have established a network of outstanding scientists, physicians and nurses on whom they have relied in bringing favorable verdicts home to their clients. They regularly consult with noted experts across the country, always with the best interest of their clients in mind.
Reich & Binstock has enjoyed great success in resolving their medical negligence claims, but they cannot guarantee any result for you. Every case is different and unique. But the lawyers at Reich & Binstock are committed to providing dependable, professional representation, one case at a time.
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