Imagine waking up from surgery and finding out that the surgery you went in for never happened. However, a surgery that you didn’t request happened instead. Does that sound wild to you? Does it sound like something that would never in a million years happen to you? Many people don’t believe that they too could be a plaintiff in a medical malpractice case thanks to a medical professional’s negligence. People are so quick to tell themselves that cases such as the aforementioned don’t happen in the present day. But that’s not true. In fact, medical malpractice is listed as one of the leading causes of death in the United States of America. If you think you may have a medical malpractice claim, make sure your case has all the elements of a medical malpractice claim before you contact a medical malpractice attorney.
You can think of elements in the same way you think of ingredients. In order to have a good medical malpractice claim, you’ll need to have each ingredient, or element, of the case. Also, you’ll need to prove that each element is present. Though the presence of some of these elements may seem obvious to you or others, defense attorneys are skilled at refuting these arguments. For example, you may be absolutely certain that your injuries were caused by a negligent medical professional. However, a skilled defense attorney will attempt to show that there are reasons to believe that the aforementioned medical professional did not cause your injuries.
Duty can be thought of as a job or a responsibility. For example, if you’re driving down the road, you have a duty to look out for cars, pedestrians, or anyone who may pull out in front of you. When it comes to medical malpractice cases, it’s typically fairly easy to establish that a medical professional had a duty toward you. The doctor-patient relationship is evidence that the medical professional had a duty to care for your physical well-being. A doctor has a duty to consider the patient’s medical history, order the appropriate tests, prescribe the correct medication, and more. Typically, proving a duty isn’t so simple. But in medical malpractice claims, it’s part of the relationship.
Breach of Duty
Going back to the example of drivers and pedestrians, a driver may breach their duty when they fail to look out for a pedestrian and hit one. Similarly, a medical professional can breach their duty of care in myriad ways. A medical professional may decide to perform a task they weren’t qualified to perform. This may be a CNA attempting to perform brain surgery. Or, a nurse may have forgotten to give the patient the medicine they needed, or they may have given the patient too much or too little medicine. A doctor may behave recklessly, endangering the life of the patient, or making fatal mistakes. All of these constitute a breach of duty. In the vast majority of medical malpractice cases, duty is breached when a doctor fails to take ordinary precautions to ensure that a patient isn’t harmed due to a mistake.
A bad experience does not necessarily constitute medical malpractice. Instead, a patient needs to have damages in order to have a medical malpractice claim. When we say damages, we’re referring to any way in which the patient has been damaged. If a patient has had the wrong limb amputated, not only would the medical records be evidence of their damages, but their pay stubs may also be evidence of damages if the amputation has negatively impacted their ability to earn a living. Though damages typically come with emotional distress, medical malpractice claims typically need physical damages along with emotional damages. This is because emotional damages are typically difficult to prove.
Lastly, a good medical malpractice attorney will need to prove that the medical professional caused the damages the plaintiff has sustained. When it comes to medical malpractice claims, the case usually goes beyond a bad experience since it needs to have all the elements of a medical malpractice claim. Proving that the medical professional caused the damages can be a simple matter or it can be incredibly difficult. The medical malpractice attorney will also need to prove that their client’s injuries were a direct result of the medical professional’s conduct. In order to do this, a personal injury attorney will likely review their client’s medical records and hire professionals to testify that the medical professional should have acted differently when treating the plaintiff.