Checklist for Pursuing a Medical Malpractice Case
Medical malpractice claims can be among the most complex types of personal injury cases. When pursuing a medical malpractice case, there are a few important things to keep in mind.
Below, we discuss some of the key factors relevant to any malpractice claim. Call a qualified medical expert for assistance with case background or expert testimony.
Basic Elements of a Medical Malpractice Claim
In order to bring a medical malpractice claim, you must satisfy the basic legal elements. The elements of any personal injury claim and how they apply in medical malpractice case are as follows:
- Duty. The defendant must owe some legal duty to the plaintiff. In a medical malpractice case, there typically must be a doctor-patient relationship. A physician-patient relationship establishes a duty of care owed by the doctor to the patient.
- Breach. The defendant must have breached their duty. In a medical malpractice case, this is established by showing the doctor was negligent (if not reckless or malicious). It is not enough that the patient was not fully satisfied with their care, or that they did not get optimal results; the doctor must have failed to act in a way that a competent doctor would have acted under the given circumstances.
- Causation. The plaintiff must demonstrate that the breach (i.e., the doctor’s negligent treatment) actually caused harm. Because medical malpractice patients are already sick or injured, this can be a tricky element. The patient must be able to show that their shoddy treatment made the injury or illness worse or caused some other harm. Even a delayed diagnosis can cause harm by delaying important treatments needed in a timely fashion.
- Damages. The patient must tie the physician’s negligent conduct to actual, specific harm. If the doctor was negligent but the plaintiff did not suffer harm as a result, the plaintiff has no claim. The plaintiff must show that they suffered in some fashion, including physical pain, mental anguish, damage to their body, financial harm, or other relevant damages.
The plaintiff will need to show each of these elements through appropriate evidence, including medical records, medical bills, expert witness testimony, statements from family, friends, employers, and other witnesses, and other forms of evidence.
Common Types of Malpractice Claims
A few types of medical errors commonly give rise to medical malpractice claims. If the patient can fit their experience into one of these categories, they have a strong chance at recovery. The most common medical malpractice claims involve:
- Failure to Diagnose / Delayed Diagnosis / Misdiagnosis. A physician failed to identify the patient’s actual malady in a timely fashion, they diagnosed the wrong condition, or they failed entirely and a different doctor had to correct their mistake. They may have missed notable symptoms, failed to conduct the appropriate, standard tests, or misinterpreted one condition as another.
- Surgical or Procedural Errors. A surgeon botched a procedure, operated on the wrong body part, or committed some other error such as leaving a medical tool behind inside a patient (a frighteningly common occurrence).
- Prescription Errors. A doctor failed to prescribe the right medicine, prescribed the wrong dosage, or failed to account for allergies or other medicine the patient was already taking. Prescription errors can also occur at the time of distribution if a pharmacist or other medical professional gives out the wrong medicine, the wrong dosage, or the wrong instructions on how to take the medicine.
- Failure to Treat. Some healthcare professionals negligently fail to fully treat a patient because they are overworked, understaffed, or are looking for a more lucrative patient to spend time on. If they fail to conduct proper tests, send a patient home too early, fail to provide proper instructions for follow-up care, or fail to properly review a patient’s medical history before prescribing treatment, they may be guilty of malpractice.
- Failure to Warn. Doctors must notify patients of known risks for procedures or medicine. A patient cannot give informed consent to a treatment or to taking a prescription if they do not know the possible side effects and other risks.
There are other types of malpractice, but these are the most common. If the claim falls into one of these categories, the plaintiff likely has a strong chance for compensation.
Medical Expert Witness
No medical malpractice claim can survive without an expert witness on your side. The plaintiff must find and retain an appropriate expert, and prepare them for depositions and testimony. The expert must be willing and able to issue an expert opinion on the matter at hand. The plaintiff needs one or more medical experts on their side who can testify about what the doctor did, what they did wrong, what they should have done, and how that hurt the plaintiff.
Special Requirements for Medical Malpractice Cases: Timing, Notice, Board Review
Many states have specific legal requirements for filing medical malpractice cases. Patients may need to submit their claims first to a medical review board before pursuing a legal case in court. There may be shorter time limits (statutes of limitations) for giving notice or filing a claim. There may also be special notice requirements to give a physician notice of the malpractice claim before anything is filed. Additionally, many states impose damages caps on medical malpractice cases. Make sure to review the specific rules for pursuing medical malpractice claims in your case.
If you need an experienced, qualified, and detail-oriented expert witness in a personal injury, medical malpractice, or product liability case, contact the offices of Neurosurgery Medlegal Services, LLC, at 866-659-8051.