Many types of surgeries involve inserting an object or device into the patient. The device can be a tool used to conduct the surgery, such as a clamp. Sutures are a type of device as well. So too is a pace maker. Therefore, devices fall into two different general categories; those that are intended to remain inside of the patient after surgery is over; and those that are used to assist in the completion of the surgery.
Experienced Hudson Valley medical malpractice attorneys know that medical malpractice can occur anytime a device is used in patient care. But the injured patient must understand the difference between defects in the device that caused harm and injuries that arise due to medical malpractice.
Devices that injure patients due to design defect, manufacture defect, or a defect in warning fall within the scope of product liability litigation. Medical malpractice involves negligence committed by a medical professional while treating a patient.
So how can a faulty device equate to medical malpractice. Often times it will depend on what the negligent doctor knew, should have known, or upon whether or not another medical professional would have done what the offending doctor did.
Devices can equate to malpractice in two general ways; if the device was used improperly and or if the device should not have been used at all in treating the patient. Of course, sometimes the device is known to be unfit for use, but nonetheless used on the patient.
Surgical forceps can and have been used improperly during child birth. Laparoscopic tools can be used improperly, especially in the hands of doctors unsuitably trained. The wrong gauge of suture can be used as well, or improperly used instead of surgical staples.
Additionally, as medicine advances, certain devices become defunct. Older types of hip replacements are replaced with better devices; older types of breast implants are discarded as being too dangerous to use. Or quite simply, the doctor either knew or should have known that the type of device used was not proper.
Medical professionals are expected to keep up to date with medical advances. When they do not, they can harm a patient that would not have otherwise been harmed. Moreover, they should not perform procedures if unqualified.
Plain and simple, the alleged negligent conduct of the offending doctor will be judged in comparison to another similarly situated doctor faced with the same circumstances. For example, if a doctor would not have used surgical forceps as did the offending doctor because such is against accepted medical practice in the community, than the offending doctor has breached the duty owed to the patient.
If that breach caused the patient to suffer an injury, the doctor can be held liable for negligent use of the device. In such instances, the patient should attempt to recover damages.
But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected] You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.