Before initiating a malpractice claim, it’s good to know why those claims are most often dismissed. In Part I of this article, we’ll discuss the most common categories of medical malpractice claims and the legal requirements for a malpractice suit. In Part II, we’ll discuss the most common pitfalls found in medical malpractice claims and why these cases may fail in court.
Types of Medical Malpractice That Can Qualify a Patient for Damages
Most malpractice claims fall into one of six categories: a misdiagnosis, delayed diagnosis, failure to treat, failure to diagnose, surgical errors, birth injuries, and medical product liability.
1. Misdiagnosis Can Lead to a Patient Not Getting the Care They Need
A misdiagnosis is one of the most common malpractice claims. It occurs when:
- A physician examines a patient but fails to diagnose the patient’s illness
- A physician diagnoses a patient with the wrong illness
It may qualify as malpractice because it prevents the patient from receiving necessary treatment. In the case of a healthy individual improperly diagnosed with an illness, a misdiagnosis results in unnecessary treatment.
Not all misdiagnoses qualify as malpractice, however. Malpractice occurs if the physician fails to do what other physicians would do in a similar situation. The patient would have to be harmed as a result as well.
2. Delayed Diagnosis Can Result in Dangerous Conditions Getting Worse
A delayed diagnosis is similar to a misdiagnosis because the delay in diagnosing a patient immediately may allow their condition to worsen. To qualify as malpractice, the physician must have failed to evaluate the patient as completely as other physicians would in the same treatment situation. For example, if a physician failed to order a necessary test or misinterpreted the test results at first, this would qualify.
3. Failure to Treat Reflects That a Healthcare Worker Abandoned You
At times, a doctor may arrive at the correct diagnosis, but fail to order the proper treatment. A physician might also:
- Release a patient too soon
- Fail to refer the patient to a specialist
- Neglect to order proper follow-up care
Medical providers may “fail to treat” a patient if they have a large caseload with too many patients to evaluate.
4. Surgical Errors do not Occur When a Healthcare Worker Pays Attention
Surgical errors can include:
- Performing unnecessary surgery
- Performing the wrong surgery
- Damaging tissue, nerves, or organs during surgery
- Using surgical instruments that aren’t sterile
- Using the wrong amount of anesthesia
- Leaving medical equipment inside the patient during surgery
- Failing to provide adequate post-surgical care
Contrary to popular belief, signing a consent form with the risks of a surgical procedure does not mean that a patient can’t sue for malpractice. A procedure’s risk of death does not excuse negligent actions from a surgeon. This is particularly so since surgical errors can have a significant impact on a patient’s quality of life.
5. Birth Injury Can be Avoided if Prenatal Care Catches Problems or Risks
The birth of a baby should be a joyous time. That’s why birth injuries can be particularly devastating. These injuries can occur if the mother received inadequate care from her medical provider before or during childbirth. If the child or mother is injured during birth and those injuries were preventable, medical malpractice may have occurred.
6. Medical Product Liability Can Occur When Defective Products are Used
When medical devices don’t work as promised, they can injure patients. If the manufacturer knew or should have known that a medical device was faulty or poorly designed, they should be liable to the victims.
The Elements of a Medical Malpractice Claim that Lies Ahead of You
There are some basic requirements for a successful malpractice suit that every claimant must show. A lawsuit must demonstrate that a provider or doctor/patient relationship exists. The lawsuit must prove:
- Negligence of the health care provider, presented by a medical expert
- That the provider’s negligence caused an injury to the patient
- That the injury led to specific damages
While the presence of a provider/patient relationship is usually pretty clear cut, the other elements of a malpractice claim are not so straightforward.
1. Negligence Should not Occur in a Professional Setting
Not every poor outcome of medical treatment constitutes malpractice. Rather, showing negligence on the part of the health care provider is the heart of a malpractice claim.
Most Americans injured by medical malpractice must prove that average healthcare workers wouldn’t have committed negligence in this situation. A provider must practice in a reasonably skillful and careful manner. He doesn’t have to be perfect, but he should not cause or contribute to unnecessary injuries and losses.
2. Causation Links the At-Fault Party’s Actions to Your Injuries
Proving negligence is very important to a malpractice claim. However, the plaintiff must also show that the physician’s negligence actually caused an injury to the patient.
Many malpractice claims involve patients who are already sick or injured. So, it can be difficult to show that the doctor’s actions caused harm to the patient. Some people would assume that the underlying illness or injury was to blame for the patient’s losses.
The lawsuit must demonstrate that it is “more likely than not” that the doctor’s negligence caused the injury.
3. Damages You Suffered Could Entitle You to Compensation
Finally, a claimant must show that the injury caused specific damages. It’s not enough to show that the provider didn’t perform to the standards of his profession. The patient must show a specific harm.
Claimants can generally sue for things such as:
- Physical pain
- Mental anguish
- Lost wages or earning capacity
- Additional medical bills
Special Requirements for a Malpractice Lawsuit That You Might Have to Fulfill
In addition to the elements of a medical malpractice lawsuit, these cases must meet some additional requirements, such as:
- Adhering to the statute of limitations
- Securing expert testimony
- Giving special notice to the healthcare provider you are suing
- Presenting your case to the medical malpractice review board
1. You will Have to File Your Lawsuit Within the Statute of Limitations
Medical malpractice claims must be brought quickly after an injury occurs. In most states, the claimant must bring suit within:
- A few years of the negligent act
- A few years of when the patient should have discovered the injury with reasonable due diligence
This time period varies from state to state. So, do not delay in taking action. You could consult a personal injury lawyer about how medical malpractice harmed you.
2. You will Have to Recruit an Expert to Give Testimony in Your Case
Medical malpractice claims require the testimony of a medical expert. A written statement must accompany the claim. The statement should discuss the appropriate standard of medical care and how the care the claimant received deviated from that standard.
This expert testimony is also necessary to establish that it is “more likely than not” that the claimant’s injury was caused by the health care provider’s negligence.
3. You Have to Provide Special Notice to the Defendant Provider
In many states, you must send a special notice to the medical providers involved in your claim. This notice must include information about the allegations and the other providers involved. In some states, this notice must also be accompanied by a statement from a medical expert.
Again, the requirements of this notice vary from state to state. This might make you think about hiring an attorney from our firm to handle your malpractice claim.
4. You Have to Present Your Case to the Medical Malpractice Review Board
Many states in the U.S. now require that medical malpractice claims first pass through a medical review board before they can be filed in court. These boards:
- Hear arguments and testimony
- Allow both parties to present evidence
- Decide whether medical malpractice actually occurred
While the boards aren’t generally allowed to award damages, their findings are admissible in court.
Facts About Medical Malpractice That Might be Relevant to You
Johns Hopkins reports that medical malpractice is the third leading cause of death in the United States, right behind heart disease and cancer. This act of negligence kills more than 250,000 people a year. Yet, Harvard found that more than 70% of medical malpractice claims are dropped, denied, or dismissed after the initial stages.
As you can see, medical malpractice claims are nuanced and complicated. The legal knowledge and the attention to detail that a medical malpractice attorney can provide is useful and beneficial. In Part II of this article, we’ll discuss further about why medical malpractice claims fail.
Patients do Not Have Enough Information, Education, Or Time for Their Cases
You might not feel that you have enough information about medical law to handle your case by yourself. We can call on our resources to take on your case. We can also disprove and explain popular medical malpractice myths.
You should relax and recover with your family around. Our team can put effort and time into achieving all the requirements of your case.
Call Underwood Law Firm to Get Started on Your Medical Malpractice Case
Our team of representatives are ready to hear your story. Call (972) 535-6377 to obtain a free consultation. You are not alone in this fight. We are ready to apply our resources and knowledge to your situation. Underwood Law Firm can stand by you and your family.