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Medical Malpractice

Medical malpractice is professional negligence which occurs when a patient is harmed by a doctor (or other medical professional) who fails to competently perform his or her medical duties that result in injury to or the death of a patient. Medical malpractice liability can occur due to a flawed diagnosis, improper treatment, or even treating a patient without proper permission.

When doctors act carelessly, the results can be catastrophic for the patient. It is no sekret that damage awards in medical malpractice cases are among the largest of all personal injury cases. Damages may include:

  • physical pain;
  • mental anguish;
  • additional medical bills;
  • lost work and lost earning capacity.

A wide variety of situations can lead to a medical malpractice claim. Errors that qualify as medical malpractice will typically fall into one of several categories. These are:

  • failure or delay in diagnosing a patient’s condition;
  • misreading X-rays;
  • prescribing the wrong drugs;
  • failing to warn a patient of the risks or side effects of a procedure;
  • performing services without the patient’s informed consent;
  • making a mistake during surgery.

There are two main components to most medical malpractice cases: figuring out who was at fault, and then proving that fault legally. Medical malpractice liability is not limited to just doctors, it can also apply to nurses and others who provide health care services, hospitals and pharmaceutical companies.

To legally establish medical negligence, an injured patient must prove:

  • the medical professional owed a duty to the patient (most often a doctor/patient relationship);
  • the provision of care (which includes decisions, treatment, and the failure to treat) that fell below the accepted medical standard of care, which is a breach of the duty owed the patient;
  • a causal connection between the medical professional’s deviation from the standard of care and the patient’s injury;
  • quantifiable harm to the patient.

It is important to act before your state statute of limitations runs out on the claim. Medical malpractice cases must be brought soon after the injury. In most states, you must bring a medical malpractice claim fairly quickly often between six months and two years, depending on the state. If you don’t file the lawsuit within the specified period of time, the court will dismiss the case regardless of the facts.

Medical malpractice law is highly regulated by a complex body of rules, which vary considerably from state to state, so it’s often essential to get advice or representation from a lawyer. An experienced medical malpractice attorney can ascertain the merits of your claim, and help walk you through the necessary stages of filing, a possible trial, and any appeals that may result. If you’re thinking about talking to an attorney about your potential medical malpractice case, keep in mind that you probably won’t need to worry about paying for representation at the outset. Most medical malpractice lawyers take cases on a contingency fee basis.

About the author

Thomas Elliott

Education: Brooklyn Law School, Brooklyn, New York. Pace University, White Plains, New York.
Professional Associations and Memberships: American Bar Association, New York State Bar, The Association of the Bar of the City of New York, Brooklyn Bar Association, National Academy of Elder Law Attorneys (NAELA).

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