Medical Malpractice-FAQ

What is medical malpractice?

Medical malpractice is negligence committed by a professional health care provider such as a doctor, nurse, dentist, technician, hospital worker, or hospital. This could depend solely on the fact that they did something or failed to do something, this causing harm or injury to you as the patient. There is a certain standard of care that a professional health care provider must meet and malpractice occurs when this standard isn’t met and falls short entirely. The provider’s failure to act is known as omission and is known as “medical negligence.”

Does someone who is not satisfied with the results of his or her surgery have a malpractice case?

In essence, there are no guarantees when it comes to medical results. Unexpected or unsuccessful results, therefore, do not necessarily mean that negligence occurred. A patient being unhappy with a course of treatment doesn’t make a case; however, within the small minority of cases that end up with errors, there can sometimes be more negligent reasons for this and malpractice may indeed come into play. Surgery is a big deal and contains a specific road to recovery that can take a long time given therapy and time lost at work and other walks of life, therefore it is up to a hospital to make sure a surgery goes as smoothly as possible with no further complication. To succeed in a medical malpractice case, a plaintiff must show an injury or specific damages that resulted from the doctor’s deviation from the standard of care applicable to the procedure.

What should I do if I think I have a medical malpractice claim?

Medical malpractice cases can vary from state to state and so it is vital that somebody who believes they have a case gets representation or advice from a lawyer immediately. It is essential that the lawyer understand exactly what happened that led to the injuries sustained from assumed malpractice. Documents from the first time the negligent health provider was seen up until the very last visit could be of great help and so good documentation is almost always necessary in a case. If possible, obtain all medical records and bring them to your very first meeting with the attorney. There are time restraints governing how long somebody is permitted to file a medical malpractice claim, like with most court cases, so time is of the essence.

What is “informed consent?”

The specific definition of informed consent may vary from state to state, but essentially it refers to the physician being required to tell a patient of all potential benefits, risks, and alternatives involved in the surgical procedure. What are all elements of full informed consent?

  • Overall nature of decision or procedure
  • Reasonable alternatives to proposed intervention
  • Risks, benefits, and even uncertainties involved to lead to patient preparation
  • Assessment of patient understanding
  • The acceptance of intervention by the patient

The physician is always required to go over the risks with the patient so they go into the decision well informed and prepared for anything. An explanation of every single element involved in a procedure from as simple as a blood draw to extreme as a life-saving surgery remain necessary and relevant. The physician must also be able to identify if the patient has the capacity to make their own decisions and act accordingly; for instance, a surrogate decision maker must speak on behalf of one who is unable to make a medical decision for themselves due to incompetency. A physician must obtain the patient’s written consent to proceed only after disclosing all risks.

Do I have a case against a doctor who prescribed me a drug for treatment, but failed to tell me it was part of an experimental program?

Your physician has many duties, one of which is full disclosure on your treatment plans. Likewise, they had a duty to tell you that the drug prescribed to you was part of an experimental program in which you had the right to refuse to participate. You may have grounds for an action against your doctor based on his or her failure to obtain your “informed consent” as previously mentioned, relative to this treatment. It is the physician’s duty to inform his or her patients of any studies undertaken with usage of this drug and disclosing all the risks involved in its usage.

If the consent form I signed prior to a procedure is considered valid, can I recover any damages in a malpractice action?

Yes, there is still a chance that you may be able to recover damages. A consent form, in no way, releases a physician from liability in the case that they have performed a procedure in a negligent fashion. If you can establish that your doctor deviated from the applicable standard of care in performing a procedure, and you happened to be injured as a result of such, you may still recover against him or her. Once again, it is best to do so in a timely fashion as all of the information is still fresh and can be easily obtained as evidence. You may also have a claim that the procedure performed went beyond the consent you gave, in which case the doctor may even be liable for battery.

How does a jury determine if a doctor’s actions were negligent?

The outcome definitely varies depending on the situation, but most of the time the same actions are followed. A jury will always consider the testimony of the experts involved, usually other doctors, who will then testify whether or not they believe your physician’s actions followed standard medical practices or fell below the accepted standard of care. They will conduct a closer examination of your medical records collected for your individual situation. The jury may also consider what are called “Learning Treatises”, or recognized literature and peer reviewed studies as well as medical association standards and guidelines if applicable and received into evidence.

What is a “Certificate of Merit?”

One obstacle plaintiffs in many states may have to overcome and consider before they can file a malpractice action against their health care professional a “Certificate of Merit.” There is an obligation and requirement that this is filed before the lawsuit continues. In order to file a certificate of merit, a plaintiff will first have to have an expert, usually another physician, review the relevant medical records and certify that the plaintiff’s health care provider deviated from accepted medical practices, which resulted in injury to the plaintiff. The plaintiff’s attorney then files the certificate of merit, which confirms that the attorney has consulted with a medical expert and that the plaintiff’s action has merit. The document itself is to prove that the plaintiff has not falsified any claims regarding the physician who treated them for any unforeseen reason and is applicable to help reduce the number of frivolous lawsuits filed in connection with medical malpractice.