Medical malpractice occurs when a doctor, other medical professional, and/or healthcare organization falls below the standard duty of care that is required of them when:

  • Managing;
  • Diagnosing; and/or
  • Treating a patient, resulting in an injury to that patient.

This deviation from the standard duty of care that is required of all medical professionals is generally the result of an act of negligence.

Medical malpractice law is what allows an injured patient to bring a legal claim against a negligent medical professional. It also allows them to recover damages for the harms that were caused by the professional’s substandard conduct.

Whether a medical professional can actually be held liable for a patient’s injuries will largely depend on the facts of a specific case, as well as the various rules and requirements of medical malpractice laws that are enacted in a particular state. Under some circumstances, the standards and regulations for medical malpractice can vary between different jurisdictions within the same state.

This is why it is advised that if you believe you have sustained injuries due to medical malpractice, you should consult with a local personal injury lawyer in order to learn more about the relevant laws that apply in your area.

Some of the most common examples of medical malpractice claims include:

  • Improperly diagnosing or failing to diagnose a patient;
  • Prescribing the wrong treatment or wrong medication;
  • Operating on the wrong body party, such as amputating their left leg instead of their right leg;
  • Failing to follow-up after a patient receives a serious procedure;
  • Prematurely discharging a patient before they have sufficiently recovered;
  • Leaving behind medical equipment, such as instruments or sponges left inside a patient, during a surgery;
  • Not providing adequate information regarding the procedure, or receiving informed consent before the patient underwent surgery; and
  • Inputting erroneous data into a patient’s medical chart, such as allergies, which cause harm to the patient.

Medical malpractice liability refers to which people or organizations should be held legally responsible for a patient’s injuries. Generally speaking, this party is most commonly the one who breached their duty of care and was the actual cause of the patient’s injuries. However, determining exactly who was liable can sometimes be a challenge, as medical malpractice liability often involves more than one party.

An example of this would be how it is possible to split medical malpractice liability between a doctor and their nurse when their combined negligent conduct led to a patient’s injury. If improper instructions were provided, or if one medical professional failed to correct the other, there may be a chance that both parties can be held liable for their mistakes.

The organization itself, such as a hospital organization, can also be held liable for medical malpractice. This is especially true in cases in which a medical organization’s overall policy or quality of care for patients falls below the necessary duty of care standard.

Some examples of parties who can be held liable for medical malpractice include:

  • General practitioners;
  • Nurses;
  • Hospitals;
  • Surgeons;
  • Dentists;
  • Psychiatrists;
  • Chiropractors;
  • Gynecologists; and
  • Clerical staff.

How Is Medical Malpractice Proven In A Lawsuit? What Are Some Medical Malpractice Defenses?

There are several elements which must be met before medical malpractice can be established. In order to prove medical malpractice liability, a plaintiff must be able to prove the following:

  • The medical professional owed the patient a duty of care to act reasonably and under the medical standard of care in overseeing the patient’s health, such as when diagnosing and treating;
  • The medical professional failed to meet the proper standard of care, meaning their duty, because they were negligent in managing some aspect of the patient’s health. In other words, they breached the duty of care that they owed to that patient;
  • The medical professional’s negligent conduct was the actual and proximate cause of the patient’s injury; and
  • The injury resulted in the patient suffering measurable damages.

Additionally, if a lawsuit is specifically filed against an organization or its clerical staff, it must be shown that the medical staff was trained and/or supervised negligently.

Some items to submit as evidence in order to support the plaintiff’s claim include:

  • Medical records;
  • Receipts for medical expenses;
  • Documents that caused a misdiagnosis or mistreatment to occur; and
  • Costs associated with their injury, such as additional hospital bills to remedy a surgeon’s mistake, etc.

There are several defenses that a defendant to a medical malpractice lawsuit may be able to assert, including:

  • Statute of Limitations: A person’s time limit in which to file a specific legal claim is known as a “statute of limitations.” Many states require that a plaintiff file a medical malpractice action within two years of the incident. As such, if this time limit has expired, the plaintiff will be barred from bringing the lawsuit and will lose their chance to recover for their injuries. It is imperative to note that these time limits will vary by jurisdiction;
  • Contributory Negligence: In states that follow contributory negligence theory, if proven, this defense will completely prevent a plaintiff from recovering from their injuries. The defendant must show that the plaintiff’s own negligent conduct contributed to their injuries, as such that the defendant cannot be held solely responsible for the harm. States that apply the doctrine in full will bar a plaintiff from recovering. However, if the state follows the modified comparative negligence theory, plaintiffs who are less than 51% at fault for their injuries may still be able to recover some amount of reduced damages; and
  • Lack of Proof or Fault: If the plaintiff fails to prove that a medical professional fell below the standard duty of care, or cannot show that they were the ones responsible for the patient’s injuries, this may serve as a defense to a medical malpractice claim.

What Is Res Ipsa Loquitur?

Literally, “res ipsa loquitur” is Latin for “the thing speaks for itself.” In a medical malpractice context, the res ipsa doctrine refers to cases in which the doctor’s treatment was so far below the appropriate standard of care that negligence is assumed.

As was previously discussed, in most medical malpractice lawsuits, the injured party must prove that the physician breached their duty by failing to provide a certain standard of medical care. Additionally, this breach of duty must be demonstrated by expert testimony. However, in res ipsa cases, expert testimony regarding the standard of care is not required.

Rather, the person who was injured must prove the following in order for the res ipsa doctrine to apply to their case:

  • It is common knowledge that the kind of accident that caused the harm does not occur without a physician’s negligence;
  • The equipment or conduct that caused the injury was, at all times, under the physician’s control; and
  • The injury was not one that the injured person assumed voluntarily, nor contributed to.

While a plaintiff can prove res ipsa in any case in which the above criteria are met, some of the common scenarios include:

  • Leaving a foreign object inside the patient after surgery or other invasive procedure;
  • Operating on the wrong patient; and
  • Operating on the wrong part of the patient.

Do I Need A Lawyer For Help With Res Ipsa Loquitur In Medical Malpractice?

If you are involved in a case that may involve res ipsa loquitur, you should speak to a personal injury attorney immediately.

An experienced personal injury attorney can help you understand your legal rights and options according to your state’s specific medical malpractice laws, and will also be able to represent you in court, as needed.