What is medical malpractice?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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A health care professional commits medical malpractice when he or she provides substandard medical care that results in injury to or the death of a patient. To win a medical malpractice case, you must show that the health care professional owed you a duty of care, that they breached this duty of care through their medical negligence, and that this negligence caused your injury.

A health care professional can include individuals such as doctors, physicians, physical therapists, nurses, chiropractors, and psychiatrists as well as business entities such as clinics, hospitals, and solo practitioners. This means, any of these professionals may be named in a medical malpractice suit.

Proving Your Medical Malpractice Claim

The first thing that you will have to prove is that the health care professional owed you a duty of care. A health care professional owes you a duty of care when they agree to diagnose or treat you for your injuries. This is rarely a hard thing to prove. However, medical negligence is more difficult. To show that a health care professional was medically negligent, you must show that they diagnosed or treated you in a way that a reasonable health care professional in the same profession would not have diagnosed or treated you. For example, if after surgery you find that the surgeon left an instrument inside of you, this would be a clear case of substandard treatment.

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Proving Medical Negligence

After establishing that the health care professional owed you a duty of care, you then must show that your injury was a result of the medical negligence.

This does not mean that it has to be an instant result, as misdiagnoses or shoddy treatment can sometimes take years to reveal themselves. What this means is, the resulting injury would not exist if it were not for the health care professionals negligence. This can be hard to establish, as you will usually already be ill or injured when you seek treatment from a health care professional.

In some cases, you will need to show that the illness or injury you originally sought help for did not cause the injury in question. With misdiagnosis, where the injury got worse because of the failure of the health care professional to diagnose it properly, you may only need to show that with earlier treatment, the further injury or illness could have been prevented.

Proving Emotional and Financial Damages

Finally, even if duty of care and medical negligence are proven, you must also show that the injury caused you some financial or emotional damage. Without this, there will be no point in bringing an action. If your injury heals very quickly without needing extra medical attention, time off work or alterations in your daily routine, it is unlikely you will be able to show that you suffered any damages.

Pursuing a Medical Malpractice Lawsuit

Because pursuing a claim for medical malpractice can immediately become a complex process, you should seek the assistance of a medical malpractice attorney. Many times, there will be several defendants involved that you will want to include in your initial complaint. For example, you may want to bring an action against the nurse, doctor, and/or their employers.

All of these main players in the lawsuit will have experienced defense attorneys geared up to protect their interests. It is important to have a knowledgeable attorney on your side to protect your rights and even this playing field.

In addition, proving the elements of a medical malpractice claim can be difficult and expensive. To show that the health care professional deviated from the normal standard of care, you will need to hire an expert witness in the same field of medicine as the negligent health care professional. The other side will also have their own expert(s), so this will mean taking multiple depositions.

Finally, it is important to act before your state statute of limitations runs out on the claim.

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