In September of 2013 the Journal of Patient Safety published a startling new report suggesting that preventable medical errors may attribute to a staggering 400,000 patient related deaths per year. Even more common are harms that have not caused death.
Experienced medical malpractice attorneys know of a synonym for preventable medical errors. That synonym is medical malpractice. While medical malpractice is a technical legal term, it simply means that a medical professional has committed an act of negligence.
Proving medical malpractice requires informing a jury on four basic elements; the existence of a duty, breach of that duty, causation, and damages.
The duty under which medical professionals work is the obligation to care for a patient as would another prudent medical professional practicing in the same filed, locality, and under similar circumstances. Courts do not define this duty, rather, the medical profession itself establishes the proper protocols that should be followed. A medical expert will explain to a jury as to what exactly the duty was that the defendant-doctor should have followed.
An expert will also explain to the jury just how that duty was breached. This is an important aspect of medical malpractice litigation; the duty must have been breached for negligence to arise. Simply because the outcome of a patient’s care was less than desirable, doesn’t mean that the medical professional was negligent.
Having proved the existence of a duty and breach, the plaintiff’s attorney will have to show that the breach was the proximate cause of the plaintiff’s injury. Proximate cause means that the injury was a probable and foreseeable consequence of the doctor’s negligence.
Lastly, there must be a showing of damages. Two types of damages exist; compensatory damages and punitive damages. Compensatory damages attempt to place the patient in a position in which he/she would have been as if the negligence never happened. Therefore, money spent on additional medical bills, lost wages, lost earning capacity, rehabilitation costs, and vocational re-training costs are all types of compensatory damages.
Punitive damages should be noted, but you must realize that they are rarely awarded. This is because civil courts are not forums of punishment like that of criminal courts. Therefore, an award of punitive damages that is meant to punish a defendant will not often be seen. However, when they are awarded it is because the defendant’s actions were especially reckless, wanton, and with utter disregard of the patient’s well being.
Common forms of medical malpractice involve the following:
- Untimely diagnoses
- Surgical errors
- Unintended foreign objects left inside a patient
- Birth related injuries to the baby and/or mother
- Prescription errors
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.