MEDICAL MALPRACTICEClick here for FREE consultation The information provided below is not legal advice, and it may not apply in every situation. Standard of Care
A breach of the standard of care requires that the plaintiff establish that the defendant physician has failed to provide the care to his patient which an average physician of the same academic qualification licensed to practice in the same area would have provided to that patient. In other words, it is not the standard which the most skilful physician would have provided nor is it the standard which the least skilful physician would have provided. Nevertheless, in order to be successful, in our experience we have found that it is necessary to establish basically to the court that no physician practicing in that area would have conducted his practice in the same manner.
It is important to note that a mere error in judgment is not sufficient to establish a breach in the standard of care. In other words, a physician is given liberty to exercise his judgment in determining a question of diagnosis and/or treatment relating to the patient. Again, the level of proof basically equates to a statement that no physician would have judged the circumstances in the same manner which this physician did. The breach in the standard of care can arise in many different ways, the most common of which includes any of the following:
- sub-standard skill exercised in the performance of a surgical procedure;
- sub-standard care in the diagnosis of the patient?s condition;
- sub-standard care in the recommendation for treatment;
- sub-standard care in the failure to provide adequate warning of the potential risks of any treatment and/or surgical procedure
Damages include, but are not limited to, lost income due to lost time from work, future loss of income, pain and suffering, future medical and care costs, and interest. Certain family members can also claim for economic loss and for loss of care, guidance and companionship. Awards vary in size depending upon each person's unique case
It is often difficult for an individual to determine whether or not medical malpractice has occurred without first consulting a legal professional. Lawyers commonly consult experts or consultants to determine whether malpractice has occurred. If you think that you have a malpractice claim, legal counsel must be sought to initiate the process of recovering your damages. You may be asked to pay for the costs of the initial assessment before your lawyer advises on the case. As medical professionals are unlikely to admit fault, this may be a necessary expense.
Stated simply, Medical Malpractice occurs when a person suffers severe injuries as a result of a professional's misconduct, failure to use adequate care, or lack of skill. The malpractice general rule is that professionals, including doctors, dentists, medical providers, etc., must act with the level of skill and learning commonly possessed by members of the profession in the same geographic community. A professional will only be liable for malpractice if he acted without the requisite minimum skill and competence, not merely because the operation or procedure was not successful.
It is the attorney's obligation to determine as quickly and efficiently as possible whether there is a good, actionable case. This is so because Medical Malpractice cases are by their very nature, complex, expensive to pursue, have a high risk of no recovery, and often involve a client's "personal" attachment. The first step in the process involves the potential client entering into an agreement with the attorney in which agreement sets forth the method of attorney compensation. Typically the attorney agrees to advance all costs, only to be repaid costs in the event of recovery, and to work on a contingent fee basis, that is the attorney would receive a percentage of the gross recovery. Thus, the client will endure no economic loss in the event of no recovery.
During the initial client contact, the attorney will obtain a detailed medical history during which the attorney should obtain the names of all physicians and hospitals who have rendered medical treatment to the client. It is valuable for a client to prepare a written summary (timeline) of all medical treatment including dates, doctors, symptoms, conversations with medical providers, and treatment received. Thereafter, all relevant medical records are obtained by the attorney. In many medical malpractice cases, proof of negligence is found in these records.
In order to determine if there is "medical malpractice" it is necessary that a medical expert be retained to consult with the plaintiff's attorney.
This expert should be well qualified to give a medical opinion, and is therefore frequently board certified in the relevant field of medicine. If, after a thorough review of the pertinent medical records, the medical expert concludes "with reasonable medical certainty that the action or inaction of the defendant physician was the cause of damage to the plaintiff", it is appropriate to file suit against the physician/hospital. Filing suit begins the legal advocacy process which may cover a period of several years. During this period both parties exchange a series of documents. In the first stage, the legal pleading stage, the parties set forth with precision their legal theories. In the second stage called, the discovery stage, the facts to support the various legal theories are developed. If the parties are not able to resolve their differences the case, now in its third stage, we will take the case to trial before a judge and jury.
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