Medical malpractice occurs when a patent is injured or harmed by a doctor or other medical professional. This injury must be a result of the negligence or failure to exercise the duty of care to the patient. There are rules that must be adhered to when filing a claim for damages against a medical professional, and these rules vary state to state.
Requirements for a Claim for Malpractice
The following must exist, and be proven by a preponderance of the evidence in order to proceed with a malpractice claim:
A doctor-patient relationship must exist. This means that the doctor you say injured you was indeed your doctor of record. You cannot, for example, sue a doctor who you overheard at the bus stop tell someone else to do about a certain condition. Your doctor must have been hired by you for your care.
The doctor was Negligent. Your doctor must have acted or not acted in a way that was outside the normal course of care that he/she is required to follow. Your doctor is not to be held to the “best” standard, but a “reasonably” skilled and careful standard. Most states do require that another doctor certify and in some cases, testify under oath, that the doctor you are claiming your injuries from was indeed a doctor who varied from the reasonably skilled and careful standard.
This doctor’s negligence was the proximate cause of the injuries you sustained. This is important because you, as a claimant and patient, were already sick or injured and therefore the line must be drawn as to what additional injuries you sustained as a result of the negligence of your doctor. This is particularly important where the claimant actually died while under the care of the doctor being sued. If the claimant was suffering from a brain tumor, and the negligence cause injury not related to the brain tumor, and the brain tumor actually killed the patient, the claim becomes very difficult to prove for additional damages. Again, expert testimony or sworn statements are used in determining the legal negligence of an act or omission of a medical doctor.
The injury actually caused damages. Just because a doctor was negligent, and his/her negligence caused injury to a claimant, it is not tantamount to an award for damages unless the damages to the claimant can be quantified. These damages could include, but are not limited to; physical pain, mental anguish, additional medical bills, loss of earnings or loss of capacity to work.
Special Requirements in Malpractice Claims
These requirements vary state to state, and also for the type of injury and doctor involved in the malpractice action.
Statute of Limitations- These are state specific and are in place to expedite that claim process while evidence and memories of those involved are more fresh and available. These statutes of limitations almost always start when the patient reasonably should have known about the negligence, not the time of the occurrence. So the time limitations may even be confusing. It is best to consult with an attorney in the jurisdiction where the incident took place to know exactly what time limitations you have in this regard.
Special Malpractice Boards or Review Panels- Many states require the patient to fist submit any possible malpractice claims to and expert panel for review and opinion prior to any law suit being filed. These panels or boards do not take the place of a court of law, however, you must show negligence, causation and damages to them before they will ‘sign off’ on your claim proceeding to court.
Notice Requirements- Some states require that a special notice be given to the doctor prior to any lawsuit filing and this notice may need to have specific items in them to be valid. Again, this is where the advice of a personal injury attorney would be very helpful.
Expert Testimony Requirements- Expert opinions are a critical part of medical malpractice claims. As discussed above, these opinions are used to certify and clarify the issues of negligence, causation and damages. Experts may be in the field of medicine, accounting (for wage loss clarification), and even psychology. Most issues require experts except some of the most basic negligence issues such as sponges left during surgery or the wrongful amputation of the wrong limb.
Limitations on Damage Awards- There are some jurisdictions which limit the amount a claimant may receive in medical malpractice claims. There are public policy issues in play here, doctor availability, doctor-flight to different states more prone to protect the medical profession and other reasons.
In most circumstances of medical malpractice, it is important to seek competent legal advice and even then, be specific when looking for a lawyer. It is important to find one who is knowledgeable of the specific issues and nuances of the medical malpractice field. Your personal injury attorney will be the one to guide you through these issues to the best possible result for your injuries.