What is Medical Malpractice?

Medical malpractice is simply negligence by any health care professional (doctor/physician assistant/nurse practitioner/nurse) when treating a patient.  This negligence can occur when the health care professional does something in treatment or diagnosis that he/she should not do or if a health care professional fails to do something as far as diagnosis or treatment is concerned that he/she should have done. For this reason such claims are often referred to simply, and perhaps more accurately, as medical negligence.

Specifically, medical negligence is a health care professional’s failure – in diagnosing or treating a patient – to meet the accepted standard of care that the medical profession requires of such health care workers in such circumstances.  For example, a failure by a doctor to determine if a patient is allergic to a specific drug, like penicillin, before administering it to the patient, would be a failure to meet the pertinent medical standard of care. Failure of a doctor to properly diagnose a dangerous health condition or disease when the patient exhibits the signs and symptoms of that condition or disease would also be medical negligence.

Just because a doctor is negligent, however, does not mean a patient is entitled to file a claim or lawsuit against such doctor. To be actionable, the doctor’s medical negligence must actually have been a cause of the patient’s serious injury or death.

Medical negligence is a serious matter in the United States. According to the Journal of Patient Safety, avoidable medical errors kill as many as 440,000 people every year. According to the Journal of the American Medical Association (JAMA), medical malpractice is the third leading cause of death in the United States.

What Must a Patient Prove to Recover for Medical Negligence?

To recover for medical negligence, the patient must prove to a jury, by a preponderance of the evidence presented to the jury, that the health care professional was negligent in their treatment of the patient and that as a result of that treatment the patient was injured or killed. This evidence must be presented by the patient using expert testimony. This expert testimony must come from another heath care professional who practices the same kind of medical work that the allegedly negligent heath care professional practices.  In other words, if a patient was injured by the negligence of an orthopedic surgeon, he must prove this negligence by testimony from another similarly credentialed orthopedic surgeon. Further, the patient must also prove, by use of expert testimony, that his injuries or loved one’s death were caused at least in part by the doctor’s negligence.

Further, most states now require that a patient have such expert testimony establishing medical negligence, by an expert in the same medical field as the negligent health care professional, before the patient can even file suit.

Overall, the patient must prove three elements by a preponderance of the evidence and by use of appropriate expert testimony to recover for medical negligence. These elements are:

  1. Negligence on the part of the health care professional.
  2. Injury or death to the patient.
  3. Injury or death caused at least in part by the negligence.

If the plaintiff cannot prove each of these elements by the preponderance of the evidence, they do not have a case.

What Must I Do to Determine If I Have a Medical Negligence Case?

First, contact an attorney. Remember, however, medical negligence claims can be very complicated and require experience to do successfully. For that reason, you should make sure the attorney you contact has significant experience in handling such claims.

Second, the attorney you contact will need basic information from you about the matter.

Third, the attorney will want you to contact the health provider to gather all of the medical records that apply to this incident.

Fourth, your attorney will want you to provide him or her with all the details of this incident. So, you will need to outline everything you remember about the incident, including everything you observed and heard (especially anything you heard from the health care providers). This is usually done in the form of a letter addressed to your attorney so that this information will be protected from disclosure by the attorney-client privilege.

Fifth, your attorney will then contact a health care professional who is similarly licensed, trained and experienced as the defendant health care professional to determine if that expert believes that there was medical negligence that was a cause of the injuries in question.

What is the Statute of Limitations for Medical Negligence Actions?

Statutes of limitations are statutes that limit the time within which claims can be brought against defendants. After the expiration of the prescribed time limit, no claim can be brought against the defendant for the claim. The length of the statute of limitations varies from state to state. Some states have statutes of limitations for medical negligence claims as short as one year while others may be as long as three years. Even within the same state the statute of limitations may be different based on whether you are suing a private health care provider or one that works for state or local government. Further, the date the statute of limitations begins to run can vary both from state to state and from situation to situation.  For example, many states have statutes of limitations that begin to run only when the patient knew or should have suspected they had been injured by the health care provider.  Other states dictate that the statute of limitations does not begin to run until the last time the patient is treated by the allegedly negligent health care provider.  Further, the statute of limitations in some states is different depending upon whether the alleged negligence injured or killed the patient.  States, like North Carolina have a two year statute of limitations for negligence that kills the patient, but usually three years for negligence that merely injures the patient.

What Will It Cost Me to Determine If I Have a Claim?

You will have to pay for the medical records and you will usually have to pay for the initial expert review. These two items usually costs around $1,500.00. If your case is taken, however, the attorney will advance all costs after that, which could be as high as $100,000.00 or more.

What Should I Do If I Think I Have a Medical Negligence Claim?

You should call an attorney immediately. We at Merritt Webb have been representing patients in medical negligence claims for over 20 years.  As a regional law firm with over 40 attorneys we have the resources to take on any claim against any medical provider and its insurers.

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