No one ever prays or wishes for a malpractice claim. Medical malpractice claim lawsuits and cases are often sad and terrible situations. If you or a loved one have suffered untold and extreme medical problems as a result of a healthcare worker’s negligence or carelessness, then you may file a medical malpractice suit against the hospital or the medical practitioner himself if you know who is responsible.
However, before you do that, you need to get familiar with the situations or elements that qualify you for a medical malpractice claim. This is important because sometimes, there is a difference between how the people see malpractice and how the law sees it.
For instance, a doctor who is gruff, off-putting and lacking in bedside manners is not guilty of any crime. It could be just his personality. On the other hand, prescribing the wrong drug that produces severe complications for a patient is a crime of negligence and can be turned into a malpractice lawsuit.
Summarily, medical malpractice claims apply when there’s a clear indication of negligence of a patient under care by a healthcare professional (please note that this applies to all healthcare practitioners, not just doctors). Let’s examine the essential elements that should be present in order for your case to qualify as a malpractice lawsuit.
Duty
A duty is a service or contract of sorts that a healthcare practitioner owes a patient under his/her care. For instance, the duty of a nurse is to follow the doctor's prescription, care for the patient and administer drugs. Every assignment must be carried out properly and to the letter. A nurse that persists with finding a vein to set a line but doesn't find any after 5-10 minutes while the patient’s condition rapidly deteriorates should consult a doctor or someone more experienced. Otherwise, he/she will be subject to malpractice claims.
Breach of Duty
This is when a medical practitioner clearly breached their duty or failed to carry out their duty to the letter and in a manner that is indicative of standard care. In such instances, there should be proof of the healthcare professional decidedly doing less or rendering a service that is below the standard care. For instance, if the doctor was supposed to perform a tracheotomy on a patient and didn't do so either out of negligence or forgetfulness, that is clearly a breach of duty and is subject to a malpractice claim.
Damages
These happen because there was a breach of duty in the first place. For instance, if as a result of the doctor's forgetfulness or the nurse's clerical error, the patient who needs tracheotomy does not get it and then goes into a coma as a result of his inability to breathe, then there is obviously ground for a damages claim. If the patient doesn't and his condition does not worsen in spite of the lack of tracheotomy, there's no ground for the damages lawsuit.
Causation
In this instance, it must be evident that there was clearly a relationship between the cause and effect that resulted in an injury, worsened condition or the death of the patient. There must be substantial proof that the injury sustained by the patient was caused by a medical practitioner's breach of duty.
This is where the “Because X did not happen" test becomes necessary. "Because the doctor did not perform the tracheotomy, the patient did not get enough oxygen to his brain. The shortage of oxygen, therefore, caused him to slip into a coma."
In this case, there was a causation. However, if the patient refuses the doctor's recommendations for a tracheotomy and then slips into a coma, there's no causation on the part of the doctor.
Now that you know this, examine all those elements and be sure that they are all present before filing a medical malpractice claim. If you are in doubt, talk to seasoned and reputable medical malpractice lawyers about it, and they'll be able to advise you accordingly.
Sources:
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2628513/
Oscar King has worked in health insurance for a while, and has had to field many inquiries regarding medical malpractice from doctors his firm recommended. For those who live in his native Orlando, when these things happen, he highly recommends attorney David Heil. You can learn more about Oscar by visiting him on Google+.