Personal Injury | Medical Malpractice
Personal Injury . Medical malpractice occurs when a patient is harmed by a doctor who fails to competently perform his or her medical duties. The rules about medical malpractice vary from state to state. But there are some general principals and broad categories of rules that apply to most medical malpractice cases. Here’s an overview of the law and some of these special rules.
Basic Requirements for a Claim
To prove that medical malpractice occurred, you must be able to show all of these things:
A doctor-patient relationship existed. You must show that you had a physician-patient relationship with the doctor you are suing. For example, you can’t sue a doctor for personal injury, because you overheard him giving advice at a cocktail party. If a doctor began seeing you and treating you, it is easy to prove a physician-patient relationship existed. Questions of whether or not the relationship exists most frequently arise where a consulting physician did not treat you directly.
The doctor was negligent. Just because you are unhappy with your treatment or results does not mean the doctor is liable for medical malpractice or personal injury. The doctor must have been negligent in connection with your diagnosis or treatment. To sue for malpractice, you must be able to show that the doctor caused you harm in a way that a competent doctor, under the same circumstances, would not have. Whether the doctor was reasonably skillful and careful is often at the heart of a medical malpractice claim. Almost all states require that the patient present a medical expert to discuss the appropriate medical standard of care and show how the defendant deviated from that standard.
The doctor’s negligence caused the injury. Because many malpractice cases involve patients that were already sick or injured, there is often a question of whether what the doctor did, negligent or not, actually caused the harm. For example, if a patient dies after treatment for lung cancer, and the doctor did do something negligent, it could be hard to prove that the doctor’s negligence caused the death rather than the cancer. The patient must show that it is “more likely than not” that the doctor’s incompetence directly caused the injury. Usually, the patient must have a medical expert testify that the doctor’s negligence caused the injury.
The injury led to specific damages. Even if it is clear that the doctor performed below the expected standards in his or her field, the patient can’t sue for malpractice if the patient didn’t suffer any harm. Here are examples of the types of harm patients can sue for:
- physical pain
- mental anguish
- additional medical bills, and
- lost work and lost earning capacity.
Learn more about medical malpractice and personal injury by contacting a personal injury attorney.
Common Types of Medical Malpractice
A wide variety of situations can lead to a medical malpractice claim — from a doctor leaving a sponge in a patient’s stomach during an operation to failing to tell a patient that a prescribed drug might cause heart failure. Most medical malpractice claims fall into one of these categories:
Failure to diagnose. If a competent doctor would have discovered the patient’s illness or made a different diagnosis, which in turn would have led to a better outcome than the one actually achieved, then the patient may have a viable medical malpractice claim.
Improper treatment. If a doctor treats the patient in a way that no other competent doctor would, the patient could have a medical malpractice claim. In a similar vein, it may also be malpractice if the doctor selects the appropriate treatment but administers it incompetently.
Failure to warn a patient of known risks. Doctors have a duty to warn patients of known risks of a procedure or course of treatment — this is known as the duty of informed consent. If a patient, once properly informed of possible risks, would have elected not to go through with the procedure, the doctor may be liable for medical malpractice if the patient is injured by the procedure (in a way that the doctor should have warned could happen).
Special Requirements in Medical Malpractice Cases
Many states have special rules and procedures for medical malpractice claims. It is important to know about these rules and follow them carefully.
Medical malpractice cases must be brought soon after the injury. In most states, you must bring a medical malpractice claim fairly quickly — often between six months and two years, depending on the state. (The time period in which you must bring the lawsuit is called the “statute of limitations.”) If you don’t file the lawsuit within the specified period of time, the court will dismiss the case regardless of the facts.
When the time period starts ticking also depends on the state. In some states, the clock starts when the negligent act occurred; in others, it starts when the patient should have discovered the injury.
Special medical malpractice review panels. Many states require the patient to first submit the claim to a malpractice review panel. This panel of experts will hear arguments, review evidence and expert testimony, and then decide whether malpractice has occurred. The panel decision does not replace an actual medical malpractice lawsuit, and the panel cannot award damages, but it’s a hoop the patient must jump through before getting to court. The findings of the review panel can be presented in court, and courts often rely on a review panel’s finding of no medical malpractice to throw out a case before it goes to trial.
Special notice requirements. Some states require that the patient give the doctor notice of the malpractice claim, in the form of a basic description, before filing anything.
Expert testimony is required. Expert opinions are often a crucial feature of the patient’s case. A qualified expert is usually required at trial. (And often, expert testimony or an expert affidavit is required at the malpractice review panel proceedings prior to commencing trial.) State rules vary as to what makes somebody qualified to provide expert medical testimony, but generally it is someone with experience in the particular field at issue. In a very limited number of circumstances, expert testimony is not required, such as when a surgical towel is left inside the patient after a surgery.
Since 1989, the personal injury attorneys of Clekis Law Firm have been representing injured people and their families in Charleston and throughout the Low Country. At the Clekis Law Firm our clients always come first. If you or a loved one has suffered a serious personal injury due to the negligence of another, don’t be victimized twice. You need someone on your side to help you with your personal injury case and obtain the fair and reasonable compensation that you deserve. Call Clekis at 843.779.1160!