Serious injuries can result when a specialist gives improper medical advice or is negligent in treating a patient with whom the specialist had or has a relationship. A medical malpractice claim is available to the patient to recoup damages stemming from the specialist’s actions or inactions.
Who May Be Sued for Medical Malpractice?
A medical malpractice claim may be filed against various parties, including the doctor, the hospital and the medical staff who were involved in the procedure. Medical malpractice claims can be filed against a medical specialist, a doctor who is considered more than a general family physician and who is an expert in treating certain health conditions or parts of the body.
For example, an obstetrician-gynecologist may be sued by the parents for wrongful birth of their child when the OBGYN causes the birth of an unhealthy child or failed to inform the parents that their child may suffer from a birth defect.
How to Establish a Claim For Medical Malpractice Against a Specialist
There is a three-part negligence test that states will employ to determine whether someone has successfully established a claim for medical malpractice. As the claimant, you must show there was an accepted standard of care, the specialist breached the standard of care, and that the breach of care caused your injuries.
Assuming that you have brought your claim timely and that the specialist does not have a defense against your claim, you will be successful in recovering damages against the specialist.
What is the Acceptable Standard of Care for a Medical Specialist?
Medical specialists are so defined because of their additional training in specialized areas, including cardiology, radiology, neurology, and pediatrics. As such, the acceptable standard of care for specialists will be higher than that for general practitioners depending on your state.
Many states will apply the national standard of care, so named because it looks nationally at the recommended treatment that specialists of equal kind would apply in similar circumstances.
Conversely, the locality standard looks at the treatment a specialist of the same kind in the local community would provide. This rule appreciates the difference in available equipment and facilities in each community.
For example, in a rural community, none of the OBGYN may have had the latest technology available that would have potentially saved the child during the delivery. The court will consider that fact and whether having that technology might have impacted the care undertaken by the OBGYN in delivering the child.
While the parents might be able to show that the child would not have been injured during the delivery had the proper equipment been available, it may be more difficult for them to establish the appropriate standard of care and whether the specialist breached the care as a result. Remember, the claimant must establish all three parts of the negligence test in order to be successful on the claim.
In a similar scenario where the specialist did have the life-saving technology, the parents may be able to establish the OBGYN breached the national standard of care by failing to maintain the good operation of the equipment or by failing to use it properly.
What are the Possible Defenses for a Medical Malpractice Claim?
Medical malpractice claims are based in negligence, which means a specialist can defeat a claim by applying the same defenses. There is the defense of contributory negligence which argues that the injured party contributed in some way to the injuries identified. Another common defense to negligence is comparative negligence, a related defense to contributory negligence.
Where contributory negligence may completely preclude you from being offered any damages for your injuries, comparative negligence allows the court to reduce damages whatever it determines was your own contribution to the injury.
Lastly, the defendant may argue that you assumed the risk of injury. This is established by showing you voluntarily and knowingly assumed the risk. In this case, you may not be entitled to any damages.
In a scenario where an orthopedic surgeon who performed a hip replacement is sued for negligence because the claimant developed an infection that caused him to lose his arm, the specialist might be able to defeat or reduce the potential for recovery of damages by asserting the above defenses.
Typically, a surgeon will have carefully explained to the patient about post-operative instructions, including how soon the patient may resume exercising and when the patient should take prescribed medication.
If the patient ignores those instructions or doesn’t follow them exactly, the surgeon might successfully argue that it was the patient’s failure to follow these instructions that contributed to the resulting loss of the arm. If the surgeon is successful in asserting this defense, the claimant might not recover any damages at all.
Should You Consult an Attorney for a Medical Malpractice Claim Against a Specialist?
Medical malpractice claims vary by state and can be difficult to establish. Claims against medical specialists require a deep understanding of the practice, as well as any particular laws that might apply against them. Learn more about your rights by consulting a local personal injury attorney.