Frequently Asked Questions about Medical Malpractice

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 What is Medical Malpractice?

A basic definition of medical malpractice is negligence which is committed by a:

  • Physician;
  • Doctor;
  • Surgeon;
  • Nurse;
  • Hospital worker; or
  • Other professional healthcare providers.

In medical malpractice claims, the injured plaintiff is required to show that the healthcare practitioner deviated from the standard of care during medical treatment, which resulted in injury to the patient. Medical malpractice occurs when the healthcare practitioner falls below the standard of care when diagnosing, treating, or managing a patient, which causes injury to that patient.

The healthcare professional’s deviation from the standard of care which is required for all healthcare professionals typically arises from acts of negligence. Medical malpractice laws allow injured patients to bring claims against negligent medical professionals.

These laws also allow plaintiffs to recover monetary damages to compensate them for the harms which were caused by the substandard conduct. Whether a healthcare professional can be held liable for injuries to a patient depends upon the facts of the case as well as the rules and requirements of the medical malpractice laws which exist in that particular state.

In some cases, the regulations and standards for medical malpractice varies between states and even jurisdictions within the state. Because of this, if an individual thinks they sustained injuries due to medical malpractice, they should consult a local personal injury lawyer who can advise them regarding the laws which would apply to their claim.

If a Patient is not Satisfied with the Results of a Surgery, can they File for Malpractice?

No, it is not necessarily possible to file for malpractice if a patient is not satisfied with the results of their surgery. This is because unexpected or unsuccessful surgical results do not automatically indicate that medical malpractice has occurred.

In order for a patient to succeed in their medical malpractice claim, a patient is generally required to prove that they were injured or suffered a measurable loss as a result of the healthcare practitioner’s breach of their duty of care. There are also other elements a patient must show in order to prove medical liability, including:

  • The healthcare professional did owe the patient a duty of care to act reasonable and in accordance with the standard of care required while overseeing the patient’s health, including diagnosing and treating the patient;
  • The healthcare professional fell below the standard of care due to negligence in managing some aspect of the health of the patient. In other words, the healthcare professional breached their duty of care owed to the patient;
  • The healthcare professional’s negligent conduct was the actual and proximate cause of the injuries the patient sustained; and
  • The patient’s injury resulted in measurable damages.

In addition, if a patient files a lawsuit against an organization or its clerical staff, the plaintiff is required to show that the medical staff was trained or supervised in a negligent manner. There are certain documents which may be helpful for a plaintiff to submit in order to support their claim, including:

  • Medical records;
  • Receipts for medical expenses;
  • Documents which caused the misdiagnosis or mistreatment to occur; and
  • Costs which are related to the injury, such as a hospital bill required to remedy the surgeon’s mistake.

What Does Informed Consent Mean?

Informed consent requirements provide that a healthcare professional must inform their patients of any risks, benefits, and potential side effects which may occur as a result of a given treatment. The healthcare professional must also inform the patient of any alternatives which are available to that treatment.

After informing the patient, the healthcare professional must then obtain the consent of the patient in writing before proceeding with the treatment or procedure. If the healthcare professional fails to obtain the patient’s informed consent, a malpractice lawsuit may arise. Informed consent is particularly important when the patient is having a major surgery.

Does an Informed Consent Form release a Doctor from All Liability?

No, even if a patient signed an informed consent form, it does not release a doctor from all liability. A patient may be able to recover in cases where a healthcare professional was negligent when rendering treatment.

For example, if an individual can prove that their physician did not follow the proper standard of care during treatment which resulted in injury, they may have a negligence claim. In addition, if a doctor performed steps which went beyond the scope of the patient’s consent, the patient may have a case for medical battery.

Is a Consent Form required for a Doctor Who is Prescribing Experimental Medications?

An individual’s health care provider has a duty to inform them whether a prescription medication is being used in conjunction with an experimental program. The healthcare professional is required to obtain the patient’s consent prior to prescribing the experimental medication.

As previously noted, failure to obtain the patient’s informed consent may lead to legal liability. If an individual is not familiar with any medications which are being prescribed to them, they have the right to inquire regarding their nature and usage in any programs. An individual also has the right to refuse the treatment.

What Are Certificates of Merit?

In numerous states, plaintiffs are often required to file certificates of merit prior to filing a medical malpractice lawsuit. Certificates of merit provide that the plaintiff’s attorney has consulted with an expert in the medical field.

A medical expert reviews the plaintiff’s medical records and information related to the medical malpractice incident in order to verify that the lawsuit has merit.

What Steps Should I Take if I Think I Have a Medical Malpractice Issue?

The first step an individual should take if they think they have a medical malpractice issues is to gather any and all related documents, including:

  • Medical receipts;
  • Hospital bills; and
  • Contact information of any medical practitioners.

An individual may also wish to create a written account of the incident while their memories are fresh. An individual should present these documents to an attorney who can review the information and determine whether liability may exist.

It is important for an individual to consult with an attorney as soon as they realize there may be a problem. This is because these types of claims have a statute of limitations, or time limit, as to when an individual can bring their claim.

Do I Need a Lawyer for Medical Malpractice?

is essential to have the assistance of a personal injury lawyer for any issues, questions, or concerns you may have related to a medical malpractice claim. These types of cases should not be taken lightly, especially if you have suffered extreme losses or been severely injured due to the negligence of a medical professional.

Your lawyer can assist you with recovering for the costs associated with your injuries as well as additional monetary damages to compensate you for lost wages or loss of future earning capacity. Your lawyer will assist you throughout the lawsuit process and represent you when you have to appear in court.

Your lawyer will also represent you during any negotiations or alternative dispute resolution proceedings, such as mediation or arbitration. In many instances, medical malpractice cases settle outside of court, so it is important to have a lawyer’s help to ensure you are properly compensated for your injuries and losses.


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