A person can file a medical malpractice case when a medical professional fails to treat a patient properly and the patient is injured as a result. Typical defendants for medical malpractice lawsuits include doctors, hospitals, nurses and other medical professionals. Some common medical malpractice claims include:
- Failure to provide a proper diagnosis or providing a misdiagnosis;
- Failure to disclose known risks of the treatment;
- Improper consent or non-consent to receive treatment;
- Failure to provide proper treatment; and
- Unauthorized disclosure of confidential information.
While these type of lawsuits are based on negligence, the court holds medical malpractice defendants to a higher standard because of their professional training. Individuals who seek medical treatment place their health and lives in the hands of medical professionals, so they must be held to a higher standard of care.
To successfully establish a medical malpractice case, you will have to allege the four main elements of a negligence claim: duty, breach, causation and damages. As noted above, remember that the medical provider will be held to a higher standard.
You will generally have to plead and prove that the defendant did not provide you with the care and treatment that a careful, competent and skilled medical provider with their same qualifications would and should have provided you with.
While the law may slightly differ between the states, the following elements will generally have to be met in order to win a medical malpractice lawsuit:
- Duty: You must illustrate that the medical professional owed you a duty to provide medical care and treatment. This can be established by showing that a doctor-patient relationship existed. Any medical records that show you were a patient of the provider will suffice.
- Breach: Next, you must show that the medical professional breached this duty by failing to provide you with the care and treatment of a careful, competent and skilled medical provider.
- This can generally be established through expert testimony from a medical professional with the same qualifications as the defendant.
- The expert will provide testimony that shows that the defendant should have provided a different course of treatment or otherwise should have acted in a different manner when treating you.
- Causation: You must also provide evidence that you were injured, and that these injuries resulted from the medical provider’s negligent behavior. There will need to be a causal link between the breach and the resulting injuries.
- For example, if you have surgery and then immediately experience complications resulting in your injuries, you can argue that the medical provider’s negligence directly caused your injuries.
- Damages: Lastly, you must provide evidence to show that you were actually suffered damages from the injury. This is usually in the form of monetary expenses, which can be proved through medical bills or other medical expenses that resulted from your injury.
- In some situations you may have a claim for other expenses as well, such as for emotional distress, lost income, or loss of consortium.
Keep in mind that even if you successfully establish the elements of a medical malpractice claim, you still could lose the lawsuit if the defendant has a valid defense to your claim. Whether a defense will hold merit will depend on the circumstances of each individual case. Some common medical malpractice defenses that you should be aware of include:
- There was no breach of the standard of care because the provider acted as a careful, competent and skilled medical provider;
- The defendant was not the cause of the injury because the patient had subsequent treatment that was the cause of their injuries;
- Contributory negligence of the patient (this is only available in some jurisdictions); and
- The plaintiff cannot prove that any damages resulted or the damages are uncertain.
Here are some other important things to know before filing a medical malpractice lawsuit:
- Medical malpractice cases generally have a shorter statute of limitations, meaning that they must be filed soon after the injury occurs or is discovered. This is generally 1-2 years, but will depend on your state’s laws.
- As soon as you think you might have a case for medical malpractice, you should explore your options so you do not miss the filing deadline.
- Typical witnesses include expert witnesses, your treating doctors, and friends or family who can testify to your condition.
- You can usually name both the individual medical provider as well as the hospital or company where they are employed as defendants in your medical malpractice lawsuit.
While the short statute of limitations seems unfair for injured patients, the reality is that evidence of medical malpractice can fade quickly. Most instances of medical malpractice can be, or must be, resolved over time due to the discomfort and pain it causes to the patient.
It is not always easy to determine if you have been injured due to medical malpractice, so it’s always a good idea to make an appointment with a different physician to determine if your pain/discomfort is due to the nature of your pre-existing injury or a medical error.
Medical malpractice lawsuits are generally very technical and complex, and contain many deadlines that could compromise your case is missed. If you wish to file a medical malpractice lawsuit, you should consult with a local personal injury attorney. Your attorney can evaluate your case, try to reach a settlement on your behalf and help you prepare for court events.