What Constitutes As Medical Malpractice

By on September 20, 2013

“Wherever the art of medicine is loved, there is also a love of humanity.” – Hippocrates

Medical malpractice is a claim that some people consider pursuing but do not necessarily understand, yet the Journal of American Medical Association states that medical malpractice is the third leading cause of death in the United States. Heart disease and cancer precede medical negligence as the primary causes of death. Medical negligence is when a professional health care provider is neglectful by act or omission when treating a patient, which causes injury or death to the patient. A medical professional can be a doctor, dentist, hospital, nurse, pharmacist, etc. Medical malpractice occurs when one of these professionals injures a patient by providing health care below the acceptable standard.

What is the Acceptable Standard of Health Care?

An acceptable standard of health care is comparing whether a reasonably prudent and competent medical provider would or wouldn’t have done the same procedure under the same or similar circumstance. This does not mean that one could file a medical malpractice claim if the medical professional did choose the correct treatment but did not do it smoothly. The question is whether their actions were negligent or not and if it lead to harm or injury.

What is Considered Negligence?

According to the dictionary, negligence in the legal definition means:

neg∙li∙gence, noun. Law. The failure to exercise that degree of care that, in the circumstances, the law requires for the protection of other persons or those interests of other persons that may be injuriously affected by the want of such care.

The injury of the health care must have led to specific damages. You cannot sue for medical malpractice if you, the patient, didn’t suffer any harm, even if the doctor performed below standards. The types of harm that qualify for medical malpractice include: physical pain, mental anguish, additional medical bills, and loss of work and future earning capacity.

What isn’t Medical Malpractice?

Some people try to extend their definition of medical malpractice to suit their situations but it’s important to understand what medical malpractice isn’t so that you aren’t wasting your own time and money trying to sue with a frivolous lawsuit. It is not considered malpractice when the medical professional provides the best quality of care but the treatment is unsuccessful. In addition, it is not medical malpractice if you are unhappy with your treatment or results.

The patient must show that the doctor caused harm (physical pain, mental anguish, additional medical bills, and loss of work and future earning capacity) to the patient in a way that a competent doctor would not have. The doctor doesn’t have to provide the best possible care, but be “reasonably skillful and careful.” Basically, a patient can’t sue if they didn’t suffer any harm, even if the doctor performed below “standards.”

What Do Most Malpractice Claims Consist of?

Most malpractice claims revolve around the following three topics: failure to diagnose, improper treatment, and failure to warn of known risks. These all fall under the category of negligence and below the acceptable standard of health care, leading to harm. Below is a list of common malpractice claims filed.

  • Failure to Diagnose (cancer, heart attack, and stroke)
  • Misdiagnosis
  • Improper Treatment (not treating patient the right way, or treats patient correctly but administers incompetently)
  • Mistake in administration of anesthesia
  • Failed surgical procedures (i.e. leaving instruments and sponges inside a person during an operation)
  • Wrong Site Surgery/Amputation
  • Bad Medical Device
  • Medication Errors (bad prescription, failing to tell them it may cause a deadly illness)

What is Required to File a Malpractice Claim?

In order to file a medical malpractice claim, the person must first prove that a doctor-patient relationship existed. Then the patient must prove that the doctor was negligent and caused injury as a result. It is difficult to prove harm when the patient was already sick or injured because the patient must then prove that “more likely than not” the doctor’s negligence or incompetence caused the harm or injury.

Take a look at the forms you signed before the medical procedure occurred. Do the forms say that you accept that you trust the medical professional to perform treatment on you and will not sue if anything goes wrong? If so, you cannot file a medical malpractice claim against them. If not, then you can try to get compensation for any pain and suffering you had including lost wages, rehabilitation and medical expenses, long-term care, and loss of future earning potential.

Medical malpractice rules and regulations vary from state-to-state. An important factor to consider is whether or not you are filing within the statute of limitation. For example, Colorado requires patients to file within 180 days if it is with a hospital. Consult with a local medical malpractice specialist in the state where your experience occurred for a better understanding of how your situation may play out.

It’s always best to get a second opinion too. Either way, if you are not satisfied with your current health care provider, don’t be afraid to seek out a new one and ask friends and other professionals for recommendations.

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The author of this article is Erin Tran. If you enjoyed this piece you can follow me on Twitter @CustParadigm. When I’m not receiving insight on health care law from a Denver medical malpractice attorney, I’m generally advocating for smarter health care reform.

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