What is medical negligence?
Medical malpractice occurs when medical treatment falls short of expected standards. If a patient is injured as a result of medical malpractice, that patient could file a lawsuit alleging medical malpractice. If a patient dies, the family could file a wrongful death lawsuit.
The most common type of medical malpractice involves surgery, but it can occur with any nurse, doctor, medical technician, or medical center. The different types of medical malpractice are almost endless. Here are some examples:
Damage to a neighboring organ during surgery.
A misdiagnosis leading to no treatment for the condition or incorrect treatment of the condition.
A doctor telling a patient that he is fine, causing a delay in treatment that eventually leads to an injury. This is especially to say if a disease is progressive, such as cancer.
A dentist whose negligent treatment causes the patient to lose teeth.
An incorrect medication or the prescription of a drug in a harmful dose. This can be negligence on the part of a doctor prescribing the medication, a nurse administering the medication, or a pharmacist.
Unnecessary surgery resulting, for example, in the patient’s inability to have children.
A botched cosmetic procedure that causes an injury or a very unpleasant result.
A medical instrument accidentally left inside a patient during surgery.
Errors in a medical record that lead to incorrect medical procedures or medications.
Inadequate or ineffective anesthesia administered prior to surgery.
An error made during labor that leads to the death of the baby or permanent injury to the baby, such as brain damage. Cerebral palsy is often the result of this type of medical malpractice.
The difficulty of “causation”
In order for a patient to file a medical malpractice lawsuit for medical negligence, they must prove (1) that the medical professionals had a duty to provide a standard of care and failed to do so, (2) that the patient suffered an injury or injuries , and (3) that the injury was caused by the alleged medical negligence.
What does “standard of care” mean? It varies from state to state. Some laws restrict the standard to physicians in the same area of the country, while others extend the standard to physicians nationwide. For example, a cardiac surgeon will rank up there with other surgeons in the same field. If he or she acted in a way that differs from the way most heart surgeons would have acted in similar circumstances, that surgeon may be found to have been medically negligent.
Since the body consists of interconnected systems, “causation” is a tricky issue in medical malpractice. Medical staff could argue that the treatment did not cause the injury but was caused by a condition the patient already had.
Psychologists and psychiatrists can also be sued for medical malpractice, although these types of cases are much more difficult to prove because not only are the injuries not physical, but the causation is particularly complex.
In either type of case, the attorneys assigned by the medical malpractice insurance company will likely try to argue that the injury was not caused by medical malpractice.
For this reason, people who are injured are encouraged to retain an attorney to help them negotiate a settlement to recover the costs they incurred. Lawyers in this situation work on a “contingency” basis, which means they do not require the client to pay them. Your fees are contingent upon receipt of settlement money from the medical malpractice insurance company. If the lawyer is successful in obtaining a settlement for the client, he or she takes a percentage of the money as fees. If the lawyer is not successful, she does not earn money for the work. As a result, attorneys work hard to win settlements for their clients.
In some states, the settlement may include pain and suffering funds, which is not reimbursement of costs but payment for the emotional stress experienced by the injury. Some states also allow “punitive damages” for gross negligence or misconduct. The amount allowed for such damage is often restricted. In the state of California, for example, no more than $250,000 can be awarded for non-economic damages.
When it comes to gross negligence or misconduct, local authorities can also bring criminal action against the doctor or medical center. This action is separate from a medical malpractice case. In a criminal action, the plaintiff is the city or state. A medical malpractice lawsuit is called a “civil” action, and the plaintiff in that case is the injured patient. However, both criminal and civil cases would have one or more defendants in common. The defendant is the person defending the claim, the party or parties alleged to have been medically negligent.
Please note that only in cases of gross negligence does the health department revoke a doctor’s medical license.
Do all medical malpractice cases go to trial?
Most of these cases are settled out of court, but when the parties cannot agree on the settlement amount, the case goes to trial. A judge or jury then makes the decision as to whether the patient is entitled to money and how much. However, before a case goes to trial, years of negotiations can take place. During that period, lawyers for both parties prepare legal documents that answer the other party’s questions. These are called “pretrial discovery” documents.
Statements are also often taken from the parties. These are interviews that allow attorneys for the opposing party to ask questions.
It is not uncommon for a settlement to be reached in court during the jury selection process. This is a tactic that pushes both sides against the wall, trying to force them to relent. The plaintiff wants the defendant to give in by offering more money in the settlement, while the defendant wants the plaintiff to give in by accepting the current settlement offer. No one wants to take a case to trial if they can be helped because court costs are much higher than settlements.
However, if a defendant’s attorney believes that money can be saved by rejecting a high settlement demand, then it is likely that a trial will take place.
