Medical Malpractice

Introduction

When someone is physically or emotionally injured, or their personal property is damaged, it is considered in law to be a “personal Injury.” The laws covering personal injury allow the injured party to receive compensation for damages caused by someone else’s carelessness, negligence, recklessness, or intentional actions. Personal injury law is also called “tort” law. States and the Federal government have enacted tort laws for the protection of your rights. Tort actions have four elements: 1) there must be a legal duty between the defendant (the one doing the wrong) and the plaintiff (the person injured); 2) there must be a breach of that duty; 3) that breach of duty must be actual and proximate cause of plaintiff’s injuries, and; 4) plaintiff must sustain damages as result of the defendant’s action. Only when all four elements take place, a personal injury, or tort, has occurred.

What Is Medical Malpractice?

Medical malpractice can be generally defined as negligence on the part of a physician, hospital or other health care professional which causes physical or emotional damage to that health care professional’s patient. Although medical malpractice is limited to negligence, which occurs in the course of providing medical, or health care, the basic legal issues involved in medical malpractice is the same as the legal elements in common negligence.

How Are Medical Malpractice Cases Analyzed?

The basic elements involved in medical malpractice, as in common negligence, are establishment of a standard of care, proving a breach of that standard of care, legal causation, and damages. Generally, standard of care is defined as how a reasonable, careful or prudent person would behave in similar circumstances.

Breach of that standard of care occurs when someone deviates from that standard of care and creates a foreseeable, unreasonable, risk of harm. Causation and damages are often intertwined and can be difficult to separate. A legal cause of action for negligence usually exists when it is determined that the breach of the standard of care proximately caused damages, usually physical or emotional in nature to the victim.

These same issues, standard of care, breach of the standard of care, causation and damage also apply in a case involving medical malpractice. However, the elements of a negligence cause of action are tailored to the medical or health care setting. Therefore, in determining whether medical malpractice exists, the questions become: 1) how would a reasonable, careful and prudent doctor, hospital or other health care provider behave in the same or similar circumstances; 2) did the doctor, hospital or other health care provider breach that standard of care in this specific situation; 3) was the unreasonable, careless or inappropriate behavior on the part of the doctor, hospital or other health care provider the proximate cause of 4) injury or damages to the patient or client?

To prevail in a medical malpractice case, all of the above elements must be proven. The failure to establish even a single element will prevent the successful outcome of a medical malpractice suit.

What Does “Statute Of Limitations” Mean?

The legislature of each state has determined and placed into the state’s laws the maximum time after the commission of a civil wrong that a lawsuit may be brought. In Illinois, a medical malpractice case must be filed with the court, no later than two (2) years after the commission of the malpractice, or after the patient has become aware that malpractice has been committed, in the case of private institutions or providers, and within one (1) year in the case of governmental facilities and providers. Regardless of how strong the malpractice claim may be, if the suit is not initiated with the statute, then the suit cannot be brought.

For example: In January of 1999, John Doe went into the hospital to have surgery done on his stomach. During the surgery, the doctor negligently left a scissors inside John’s stomach. The instrument resulted in a stomach infection that required intensive medical attention and prolonged hospitalization. If the statute of limitations for medical malpractice suits is two years from the time of the malpractice, then John must file suit with the court no later than January of 2001. If John decides to file suit in February of 2001, then his suit will be barred from being brought due to the statute of limitations.

Types of Medical Malpractice

Medical malpractice can occur in many different scenarios of which some are listed here:

1. Failure to diagnose and properly treat medical emergencies. In emergency situations prompt and correct treatment is essential.

2. Failure to diagnose and properly treat serious medical conditions. Often symptoms are overlooked or a patient is taken for granted. Sometimes x-rays and other test results are misread.

3. Surgical mistakes. As slip of a knife can cause severe problems. Sometimes medical instruments or sponges are left inside a patient after surgery by mistake.

4. Errors with medication or treatment. A wrong prescription or treatment can cause serious injury or illness.

5. Delays in diagnosis. Many times diagnostic delay can have dire consequences, especially in the case of various types of cancer.

6. Birth Injuries. Malpractice can often occur during labor. Complications arise that require immediate and proper reactions from doctors and nurses. Cerebral Palsy cases sometimes arise as a result of such medical mistakes.

7. Failure to advise of diagnosis. A patient has the right to know the diagnosis so that he or she can properly assess treatment options.

8. Lack of Informed Consent. A patient has the right to understand the risks associated with a particular type of treatment.

9. Abandonment. A treatment provider cannot always simply stop treating a patient, especially in emergency situations.

How Do I Begin A Medical Malpractice Lawsuit?

Medical malpractice is an extremely complicated area of law that raises many complex and intellectually difficult legal and medical issues. Due to the heavy reliance upon medical experts, the cost involved in bringing a successful medical malpractice suit is very high. If you think that you have a valid medical malpractice lawsuit, give us a call for a free case evaluation. Attorney Ivan M. Sternic, M.D., J.D. who is also a Medical Doctor, will determine not only whether the case is viable, but also how difficult the case will be to try before a jury.