Standards of Care and Proof of Fault in Medical Malpractice Actions

In movies, television programs and literature, doctors are often portrayed to be infallible marvels who are able to work miracles in what seem to be hopeless situations. While physicians can often do amazing things, they cannot turn every case into a success story.

It is unreasonable for patients to expect perfection from their doctors, but it is entirely fair that medical professionals be held to real standards of care and proficiency. Those who fall short of these benchmarks and thus cause harm to their patients may find themselves on the losing end of a medical malpractice lawsuit.

Medical malpractice cases are frequently brought under a negligence theory. For negligence to be demonstrated, a plaintiff needs to show that the medical professional in question had a duty to the claimant, the medical professional deviated from the standard of care to which he or she is rightly held and that the deviation from the standard of care was what caused the injury to the plaintiff.

Though all three of these elements must be established in order to prove negligence, perhaps the most contentious aspect of most medical malpractice cases is the determination of the appropriate and accepted standard of care.

The standard of care is often broadly defined as a course of treatment that has wide acceptance on the part of medical experts as being appropriate for addressing a particular disease or condition and that is extensively used by a wide spectrum of medical professionals. The problem, however, is that there may be significant disagreement among medical experts as to what can rightly be deemed “standard” treatment under a given set of circumstances.

Generally speaking, the proper standard of care in medical contexts can be determined by looking at how comparably trained and qualified medical professionals would have treated a patient in the same situation. Further factors used to assess standard of care are things such as whether a doctor has exhibited the skill and attention that a competent doctor in the same field would and whether a doctor exhibited a level of knowledge and skill comparable to others in the local area. In cases where a doctor diverges from the course of action other physicians would have taken, they may be able to argue that a respectable minority of similarly situated practitioners would have taken similar action.

To prove a breach of the standard of care in a medical malpractice action, the testimony of medical experts trained in the same specialty as the defendant physician will be essential. Such an expert will be used to establish the relevant standard of care as well as to lend support to the allegation that the defendant failed to meet it.

Victims of medical malpractice may initially feel they have little chance of prevailing simply because the doctor at issue is the one who crafted the medical reports relevant to the matter and who may be the only person able to describe or potentially mischaracterize the events that transpired. However, there are safeguards in the law that can help mitigate this type of imbalance.

The legal doctrine of “res ipsa loquitur,” or “the thing speaks for itself” can be utilized to help plaintiffs successfully argue that their injury is simply not the sort of harm that could have occurred in the absence of the negligence alleged. If this construct is involved successfully, the burden of proof shifts. It will no longer be the plaintiff’s duty to prove negligence, but rather it will be the defendant’s responsibility to demonstrate that he or she was not negligent.

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The Most Important Factors in a Successful Medical Malpractice Claim

Medical malpractice lawsuits are not typical legal filings. Doctors and medical professionals enjoy extensive professional latitude when treating patients, especially with regard to a diagnosis. Many medical problems require several medical testing procedures to arrive at an accurate analysis of the information. There are certain aspects of a blood analysis that point to certain diseases, but medical science is not always exact until the specialists begin investigating the disorder.

Legal claims against a medical facility may be easier to prove in a court room, which is a significant concern for the malpractice attorney. It is incumbent on the plaintiff to prove that a mistake was made in diagnosis, along with an additional injury which occurred through the negligence of the respondent medical professional who acted based on the mistaken diagnosis.

Actual Injury

For a malpractice claim to be valid, the plaintiff attorney must prove to the court that the injury was a result of negligence on the part of the facility or the physician. A negative diagnosis or unsatisfactory outcome does not mean you are a medical malpractice victim, according to Williams Law Association, P.A. Negligence is a requirement; a mere mistake in diagnosis or prognosis may not be recoverable.

Courts recognize doctors are human, just like the patient, and mistakes happen regularly in the medical field. All evidence in a malpractice case is not material, which means that the fact has a direct application to the claimed negligence. There must be an actual injury beyond the treated condition resulting from direct causation by an action or inaction of the respondent medical professional.

Negligence and Standard of Care

There is a general duty of care in the medical profession that is similar to the negligence of a reasonable duty of care involving general personal injury lawsuits. Standard of care is established by the “expert” testimony of second and third-party medical professionals who offer neutral opinions about treating and diagnosing a particular medical problem.

These experts are usually specialist physicians whose testimony is approved by the court as the most accurate opinion available. The testimony also gives the court and the plaintiff attorney a “standard” which can be used as a treatment barometer. Second and third doctor’s opinions are often implemented by the defending insurance company also, especially when these opinions differ markedly.

An Experienced Attorney

Medical malpractice lawsuits are always defended vigorously by both the medical professionals and the insurance companies. It is important to understand that there are multiple respondents in all medical malpractice suits. Each defendant will have their own team of lawyers providing legal input in denying the claim. This obviously can make a malpractice case complicated when all evidence is provided, but the burden of proof is still a preponderance of the evidence.

Preponderance is a “weighing” of the evidence and is not automatically based on the amount of evidence, as one particular fact in a case can be the dominant material fact. It is important to have an experienced attorney who understands how to continually apply that dominant fact in the legal argument over evidence.

Most states require any medical malpractice suit be approved by the court of jurisdiction through a formal hearing prior to the actual court filing. The court will then allow the plaintiff attorney to proceed with the case. This initial hearing is not the actual evidence discovery procedure of the lawsuit. The initial hearing is a review of what the plaintiff asserts has happened and why it has happened. The respondent can ask for summary dismissal, but this is rarely granted with an experienced and active medical malpractice attorney who is also adept in professional negotiation in all stages of the case.

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Five Common Factors Behind Medical Malpratice Mistakes

When we look at our doctors and hospital staff, we hope to see a calm and collected team of medical professionals, ensuring our care is error-free and top notch. While a visit to the hospital is incident-free for most of us, mistakes do happen. Sometimes these errors can result in lifelong problems for the patient, and even death. Finding out what went wrong with you or your loved one can feel daunting, but isn’t impossible by understanding some of the most common medical errors. When armed with this knowledge, taking a legal stand becomes less intimidating.

Delayed Care

When you enter the hospital, it is not unreasonable that occasionally your care is delayed as more urgent cases are seen. However, what happens when your condition worsens because you were not given an appropriate urgency level on admission? Another situation where a delayed care charge can be levied is in cases where medication was not administered on time or a patient waited for an unreasonable amount of time before getting appropriate medical attention.

Not Obtaining Consent

While hospitals these days are extremely careful in ensuring they have the appropriate level of consent, there are instances where either the patient or their family feel they were not given an appropriate amount of information prior to care, and therefore were not able to make a fully-informed decision. For example, a patient who suffers from an accidental puncture of a vital organ during a routine surgery may feel they were not fully-informed of the risks of such an accident.

Diagnosis Failures

As doctors are only human, occasional mistakes can be made with a diagnosis. Patients are occasionally allowed to leave the hospital before they should, thus resulting in greater injury or illness. Doctors can also miss major illnesses, such as cancer, during routine checkups.

Medication Errors

A common problem in busy hospitals where staff are dealing with hundreds of patients and diagnoses is giving a patient the wrong dose of a medication or neglecting to administer it at all. Ensure you or your loved ones are aware of your dosages, and fully inform any hospital staff of any additional medication you are taking.

Poor Supervision of Staff

Hospitals hire and have on hand a multitude of staff at various levels of training. This can be particularly problematic in hospitals that play host to medical students, who sometimes stand in for absent doctors or fully-trained staff. Without the proper training, this can lead to a dangerous situation for an unsuspecting patient.

While hospital care is usually drama-free, every once in a while a problem can occur due to human error. When discovering these issues, it’s important to understand exactly what happened so you are better able to discuss the situation with an attorney and the hospital administration. Be sure either you as the patient or a trusted friend or family member always understands what is going on and what is being done.

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The Medical Malpractice Statute Of Limitations

It’s easy to allow your attorney to handle all of the legal matters of your case while you wait to see how things turn out. Both you and your attorney will be better off if you try to educate yourself about some of the more important details of your case, so that you’ll have a better understanding of what’s going on and your attorney won’t have to take time away from your case to answer questions to which you could find the answers on your own.

The medical malpractice statute of limitations is something that you’ll most definitely want to brush up on, since it places a limit on how much time you have to file your malpractice suit. In most states you’ll have to file your case within a few years of the occurrence of the injury. The longer you wait to file your case, the more you jeopardize your chances of winning.

Malpractice attorneys have to pay close attention to the statute of limitations in medical malpractice cases, and letting a statute of limitations run out before filing a case is one of the most prevalent reasons for attorney malpractice claims.

With medical malpractice claims, it can be difficult to identify the alleged injury, sometimes taking individuals several months or years before they actually notice that anything is wrong. A patient might not notice that a piece of medical equipment was left inside of them during a surgery since the symptoms can start off as mild and worsen as time goes by. It can take a while for the doctor to figure out just what it is that’s bothering the patient.

Should you find out that the statute of limitation for medical practice has passed for your case, you still have the discovery rule to turn to. With the discovery rule, the medical malpractice statute of limitations doesn’t start until the individual’s injury is initially discovered or when the patient should have known that something wasn’t right. If a negligent medical practitioner were to cause an injury that makes the patient cough up blood, then that is a clue to the patient that something is wrong. At that time they should get the problem checked out. Whenever the cause is discovered is when the statute of limitations would begin to run.

Medical malpractice claims can be quite complex, so you should act as quickly as possible and educate yourself in order to stand the best chance of winning your case and to help your attorney to better help you.

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Defective Surgical Waste Systems

Surgery is a complicated process for a number of reasons. There is the issue that needs to be corrected, the patient, the health of the patient, any pre existing conditions that should be taken into account, the procedure itself, and of course the equipment that is to be used. People trust that all of these factors will be fully taken care of and handled with top notch professionalism, and, especially, that all equipment and surgical components will be safe and functioning properly.

Unfortunately, there are times when this is not the case, and certain things go wrong. One issue that has come to light as of late is that of defective surgical waste systems. These systems appear to be malfunctioning, causing patients to become injured. One system in particular, made by a leading surgical supply manufacturer, has particularly been at the center of alarm due to patient injuries. This system is designed to collect waste and fluid in surgical facilities and operating rooms, but has since been recalled because of reports of serious complications and fatalities. Based on information from the United States Food and Drug Administration (FDA) two versions of the same surgical waste system can pose possibly fatal side effects such as severe bleeding, damage to soft tissue, and damage to organs when not used properly.

A class I recall, the most severe type of recall, was issued in June of 2012 for six models of surgical waste systems made by one manufacturer. The recall was issued after both the manufacturer and the FDA received reports of a patient being injured, and one patient dying due to the use of one of the systems. The FDA states that the injuries and the fatality were due to use of the high flow high suction system, which was not used in a correct fashion.

One model in particular was connected to a tube used for passive chest drainage following an operation, which caused a fatality. The FDA warns that the product instructions did not warn users against doing this, and goes on to state that even when the devices are used in a correct fashion, they can lead to damage of the muscles, soft tissues, and organs which can cause serious harm and even deaths.

A class I recall the most serious of all of the FDA recalls, were issued for all the devices in question. This type of recall suggests that using the device or product in question poses a serious threat to patient health and may result in death.

In September of 2012, the manufacturer of the surgical waste systems expanded the recall to include even more models because the FDA claims the devices were not correctly approved for use. The manufacturer issued a press release that explained the devices were supposed to gain clearance for use through the 510k process, but did not have it at the present time. The press release went on to state that the FDA did not consider the systems to be marketed in a legal manner, since their safety and effectiveness had yet to be determined.

The manufacturer says it has stopped distributing the surgical waste systems to medical facilities. The FDA has also advised medical professionals and facilities not to use the systems any longer. The only time this is to be ignored is if there is no other alternative for patients, and in this situation the risks must be carefully weighed against the possible benefits.

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