Medical malpractice is negligence committed by medical professionals. For negligence to be "actionable" (having all the components necessary to constitute a viable cause of action), there must be a duty owed to someone, a breach of that duty, and resulting harm or damage that is proximately caused by that breach. The simplest way to apply the concept of proximate cause to medical malpractice is to ask whether, "but for" the alleged negligence, the harm or injury would have occurred.
When determining whether the conduct of a member of the general public is negligent, the conduct is judged against a standard of how a "reasonably prudent person" might act in the same or similar circumstance. Conversely, when determining whether a medical professional has been negligent, his or her practice or conduct is judged at a level of competency and professionalism consistent with the specialized training, experience, and care of a "reasonably prudent" physician in the same or similar circumstances. This constitutes the "standard of care" or professional "duty" that a physician owes to his or her patient. If the physician breaches the standard of care and his patient suffers accordingly, there is actionable medical malpractice.
The term "patient" generally refers to a person who is receiving medical treatment and/or who is under medical care. In many states, other licensed medical professionals such as chiropractors, nurses, therapists, and psychologists, may also be sued for malpractice, i.e., negligently breaching their respective professional duties owed to the patient. The following sections refer generally to medical malpractice as it relates to medical doctors/physicians.
Medical Malpractice In-Depth
When illness or injury forces you to see a physician or go to the hospital, you can generally be assured that a medical professional's years of experience and training will result in excellent treatment. But in truth, medical care providers are only human, and errors are always possible. Medical malpractice occurs when a negligent act or omission by a doctor or other medical professional results in damage or harm to a patient.
Negligence by a medical professional can include an error in diagnosis, treatment, or illness management. If such negligence results in injury to a patient, a legal case for medical malpractice can arise against: The doctor, if his or her actions deviated from generally accepted standards of practice; The hospital for improper care or inadequate training, such as problems with medications or sanitation; Local, state or federal agencies that operate hospital facilities.
Medical malpractice laws are designed to protect patients' rights to pursue compensation if they are injured as a result of negligence. However, malpractice suits are often complex and costly to win. Therefore, if you believe you have a medical malpractice claim, it is important to consult with an attorney who will discuss your case with you, and help you determine your best options.
Legislation Affecting Malpractice Actions
Due in part to the power and resources of health care industry lobbyists, many states have passed legislation making it more difficult to bring and prevail in medical malpractice actions. I
Proving Fault in Medical Malpractice Cases
Legal liability for injuries caused by medical malpractice can be established under a number of legal theories:
Negligence
Most medical malpractice cases proceed under the theory that a medical professional was negligent in treating the patient. To establish medical negligence, an injured patient, the plaintiff, must prove: The existence of a duty owed by the health care professional to the plaintiff (for example, a doctor/patient relationship); The applicable standard of care, and the health care professional's deviation from that standard, which is deemed a breach of the duty owed the patient; A causal relationship between the health care professional's deviation from the standard of care and the patient's injury; Injury to the patient.
To find a medical professional negligent, it must be shown that his or her conduct fell below a generally accepted standard of medical care. To establish the standard to be applied, a plaintiff must present the testimony of another medical expert, qualified in the same area of medicine as the defendant, indicating what standard, or level of care, is commonly met by those recognized in the profession as being competent and qualified to practice. The plaintiff will have to present expert testimony not only as to the applicable standard of care, but establishing that the defendant failed to meet this standard.
Negligent Prescription of Medications or Medical Devices
A medical professional may be held liable for the negligent prescription of a medication or medical device if he or she ignored the manufacturer's instructions, or prescribed an incorrect medication or dosage, which resulted in injury to the patient. In some cases, a pharmaceutical manufacturer may be liable where a drug caused a patient injuries, but only if the manufacturer failed to warn of potential side effects or dangers of the drug. In most cases, the prescribing physician is considered a "learned intermediary," which means that because of his or her superior medical knowledge, and the fact that he or she has been given adequate information from the manufacturer, he or she is in the best position to determine whether a particular drug or device is appropriate for a patient. Thus, the physician has the primary duty of advising the patient of the risks and side effects of a medication or medical device he or she prescribe
