Do you know the odds of your average physician facing a malpractice lawsuit is 75% percent? And that’s just for those engaged in low-risk specialties. According to this study, a high-risk variant is 99% more likely to encounter one by the age of sixty-five.
This concept of medical accountability is not new.
In fact, as far as 2030 BC, the code of Hammurabi called for doctors to cut off their hands if they caused their respective patients to lose their eyes. The Greek medical text, The Hippocratic Oath required new physicians to swear by the Gods that they would uphold a medical standard of ethics.
Since then, we’ve made progress in our legal systems.
And in the face of a lawsuit, a practitioner is likely to get a more practical punishment or penalty. But the age-old principles of the Hippocratic oath, like due diligence, are still fundamentals in American law.
It is important that we hold professionals accountable for their actions. But, not every counter-productive action by a doctor can constitute medical malpractice. Read on to learn the details.
What Constitutes “Medical Malpractice” Under the Law?
Medical malpractice comes under a broader spectrum of “professional negligence” under tort law. How do you determine negligence? You question whether the average person would have exercised greater care or caution in the same scenario.
Similarly, professionals hold a higher level of accountability than normal people. It takes into consideration what the average professional within that field with the same training would have done.
This creates a “medical standard of care”. Medical malpractice is when a doctor doesn’t do everything s/he can to uphold this standard of care, resulting in some form of injury to the patient.
- A misdiagnosis, or an unnecessary delay in diagnosis
- Inappropriate treatment for an illness
- Failure to warn the patient of possible side-effects for a given operation or treatment
Who Can File a Medical Malpractice Lawsuit?
To be able to file a malpractice lawsuit, your case needs to be able to meet certain requirements. As the plaintiff, you will need to establish the following circumstances:
A Professional Relationship
You need to establish the existence of a doctor-patient relationship. This creates a “duty of care”, proving that your doctor is legally responsible to exercise care and caution during your treatment.
A Negligent Act
You must establish that the doctor failed to perform their due diligence during your course of treatment. Negligence does not always refer to an act, it can also be a failure to act.
A Consequential Injury
You must prove that as a consequence of this negligent act, there was a detriment to your health and well-being. The important part is that there must be a certifiable link between the negligence and the subsequent injury.
The injury in question must cause some form of damage that warrants compensation. Some common ones include:
- Physical injury, trauma and other emotional pain
- Unnecessary expenditure, medical bills
- Loss of earning capacity, a temporary or permanent disability
- Loss of enjoyment of life
- Loss of wages or employment
If the patient in question dies, the family might still be able to claim compensation, especially in cases of wrongful death.
Things to Consider
A medical malpractice lawsuit is different from the average personal injury lawsuit. If you want to sue your doctor, you first have to keep the following nuances in mind:
Statute of Limitations
Most states need you to file a medical malpractice lawsuit soon after you notice the injury. In some cases, this rule of discovery does not apply, and you have to file a lawsuit after the negligent act itself. There may also be a special deadline for minors.
Some states need you to first establish your case to a malpractice review panel. This panel must then judge whether your case meets the criteria for a “medical malpractice lawsuit”. In such circumstances, the results of your review will determine whether you’re allowed to take your case to court.
An Expert’s Testimony
In other states, you may need an expert’s testimony in the form of a certificate of merit. Most states need the expert to testify that they believe that there was a medical standard of care expected from the doctor. And that the doctor failed to uphold it, causing the patient’s injuries.
These regulations are in place to prevent frivolous lawsuits against professionals.
The above requirements are strongly regulated by state laws. Elements like the statute of limitations and the kind of qualifications your expert needs to have for a valid testimony may differ. Some may even have other requirements in a place like a notification to the doctor about the claim for malpractice.
Additionally, the damages you claim may also be subjected to limitations, depending on the state. But, these limits are usually placed on non-monetary injuries like pain and suffering.
Finding a Specialized Lawyer
The circumstances of your case will play a large role in whether or how you can sue your lawyer.
In certain cases, it might be more beneficial to try and get an out-of-court settlement, like a negotiation. Given the nuances of medical laws and filing a malpractice lawsuit, it is usually smarter to get in touch with a lawyer. One who is well-acquainted with these kinds of cases and able to represent or advise you appropriately.
To understand the full spectrum of your options, get in touch for a free consultation on your case!