Imagine you are injured playing sports or another recreational activity. Your doctor convinces you the injury is serious enough to merit surgery, and you undergo the operation. After the surgery is completed and you have done your physical therapy, you realize your injury feels worse than before.
A subsequent checkup reveals that your surgery actually exacerbated your injury instead of healing it. Your new doctor informs you the original surgery was never really required, and now you will need to have another operation. In this case, your initial doctor committed medical malpractice by recommending an unnecessary surgery and then botching the operation.
What Is Medical Malpractice?
The above example is an exaggerated look at one way in which a doctor can commit malpractice. Medical malpractice occurs when a doctor deviates from the recognized "standard of care" in treating a patient. The "standard of care" is defined as what a reasonably prudent medical provider would or would not have done under the same or similar circumstances.
Basically, medical malpractice occurs when your doctor acts negligently in providing treatment for an injury or illness.
Examples of Medical Malpractice
Medical malpractice can occur in many different areas of treatment. Here are some of the more common instances of medical malpractice claims:
- Failure to diagnose
- Improper treatment
- Delay in treatment
- Improper surgery
- Prescription errors
- Anesthesia errors
- Failure to properly explain a medical procedure or treatment
How to Prove Your Doctor Committed Malpractice
Even if you hire an attorney to represent your medical malpractice claim, you should understand the elements you and your attorney will need to prove in order to be successful. The elements of a successful malpractice claim include:
- A doctor-patient relationship existed. You will need to prove that you hired your doctor, or that he or she agreed to provide treatment to you. If a consulting doctor did not provide treatment, you will not be able to make a claim for malpractice.
- Your doctor acted negligently. Even though you expect the best from your doctor, you are not entitled to perfect healthcare. Your doctor simply must provide treatment that is "reasonably skillful and careful." If your doctor fails to do so, then he or she has acted negligently in treating your ailment.
- Your doctor’s negligence caused your injury. This is the hardest aspect of your claim to prove. Basically, you must show that your doctor’s negligence caused your injury, which is separate from your existing injury or illness. Experienced attorneys will often use a medical expert to testify that the doctor’s negligence "more likely than not" caused your injuries.
- Your injury led to specific damages. Even if your doctor acted negligently, you will not have a lawsuit unless his or her mistakes caused your harm. Some examples of specific damages include physical injury, mental anguish, subsequent medical bills, and the loss of ability to work.
As with all injury lawsuits, it is important to be mindful of the statute of limitations for your case. Filing a lawsuit beyond the statutory time frame will result in losing your cause of action. The statute of limitations for your case will vary depending on the state in which the injury occurred.
Medical Malpractice and Expert Witnesses
As discussed above, a crucial aspect of your medical malpractice claim is proving that your doctor deviated from the standard of care that a reasonably prudent doctor would have exhibited in providing treatment. The standard of care also includes a consideration of what similar doctors in similar communities would have done in the same situation. In order to determine the applicable standard of care, you will need to present expert witness testimony as part of your case.
An expert witness in a medical malpractice case can assess your treatment and then testify to whether or not your doctor’s action or inaction led to your injury. Then, the expert witness will also need to testify that your doctor’s actions failed to conform to the standard of care outlined above.
Expert witnesses in medical malpractice cases are usually current or retired healthcare professionals. Many healthcare professionals offer expert witness services as a way to supplement their income. Most malpractice lawyers will have a list of expert witnesses with whom they normally work and should be able to find a witness capable of testifying on your behalf.
You Will Need an Attorney to Pursue Your Malpractice Claim
If you are considering filing a medical malpractice claim, it is in your best interest to retain an experienced personal injury lawyer. Medical malpractice occurs more often than you might expect, yet it is estimated that nearly 80% of medical malpractice claims end with no payment to the plaintiff whatsoever. Hiring an attorney early on in the process will give you the best chance to recover what you are owed.