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Common Causes of Malpractice Litigation

The legal process for defending malpractice is a complex procedure. The degree to which an error is considered to be malpractice is dependent on whether the patient is able to establish four legal elements that include a professional obligation; breach of this duty; harm resulted from the breach and the possibility of quantifiable damages.

Plaintiffs must demonstrate these elements with evidence such as expert testimony, depositions, and discovery.

Misdiagnosis or Failure to Diagnose

Inability to recognize an injury or illness in a timely manner can result in serious complications, or death. Many medical malpractice cases involve incorrect diagnosis. To prove negligence, a patient or their lawyer must prove that a skilled doctor in similar circumstances would not have misdiagnosed a condition.

A misdiagnosis is not always malpractice. Even highly skilled and experienced doctors make mistakes, and an allegation of malpractice needs to be backed by other elements such as breach, proximate cause and actual injury. For example, if a physician does not properly sterilize their equipment before administering anesthesia, and the patient develops an infection in the process the doctor could be liable for malpractice.

In most instances, lawsuits claiming that there was a mistake will be filed in the state trial court where the alleged error occurred. Federal courts can be able to hear cases in certain instances. A claim can be brought before a federal court in certain circumstances. For example it could be disputes over the statute of limitations or when the parties are of different citizenships. Certain disputes are settled through binding arbitration. This is a less formal procedure which involves professional decision makers and is designed to cut costs, expedite legal proceedings and reduce the possibility of excessively generous juries. Arbitration is not always available in cases of misconduct.

The wrong dosage of medication

Medication errors, also referred as medication mistakes, are one of the main reasons for medical malpractice lawsuits. These errors are caused by a doctor who has submitted a prescription in the wrong format or giving the patient the wrong dosage. These errors are typically preventable. According to the situation an individual pharmacy, hospital or other health care provider could be held responsible for the harm caused by patients who were given the wrong dose of a medication.

A doctor may prescribe the incorrect medication to a patient as a result of an inaccurate diagnosis or simply because he/she misreads the prescription. A health professional can also give the wrong dosage due to a failure in communication. For instance nurses might read a doctor's script incorrectly or a pharmacist might make an error when filling the prescription. In other cases doctors may delay the administration of the correct medication to the patient, which could result in their condition worsening.

A person who suffers from a medical malpractice claim must prove, for the sake of winning a malpractice lawyers claim, that the medical professional violated their standards of practice and that their injuries were directly caused by the negligence. This requires testimony from a medical expert. Furthermore, a medical negligence case must establish the severity of the victim's injuries and the damages they sustained because of the negligence. This includes the costs of treatment as well as any lost wages. In general, the greater a person's losses are and the greater the value of the claim will be.

Incorrect Procedure

This kind of situation is not uncommon. It might seem impossible for medical professionals to perform the incorrect procedure on patients, however, it is a reality. A surgeon who makes this error can be found responsible for malpractice. However the patient who is injured as a result of a surgical error could also be held accountable for any negligence that occurred along the process.

Any health care professional who is accused of negligence must prove that the patient was injured by a specific action or inaction. To prove this the legal team representing the patient must prove: (1) that the doctor had a responsibility to provide care or treat the patient; (2) that he violated his duty; (3) that a causal connection exists between the breach and the injury and (4) the injuries result in damages that the legal system could address.

A breach of the duty of care is insignificant unless it causes injury, which is the reason medical malpractice Lawyers claims are usually based on a legal doctrine known as "res ipsa loquitur." This law states that, in many instances, certain injuries are so obvious and unmistakable that they cannot be explained except by negligent actions.

Depending on the facts of the case, the plaintiff (the patient or their legally appointed representative) or their attorney may file the claim in federal or state court. The majority of malpractice cases are filed in state court, however in certain situations medical malpractice lawsuits can be filed in federal district court.

Wrong Surgery

Wrong-site surgery is a rare mistake, but it could be considered medical malpractice when the procedure is performed on the wrong area of the body. This kind of error is usually caused by miscommunications between members of the surgical team, or by production pressures that lead to a surgeon having multiple surgeries scheduled at the same time. In these instances the surgeon is not solely responsible for a wrong-site procedure due to a legal rule known as "res ipsa locquitur" which says that the outcome speaks for itself and cannot be blamed on negligence.

When a patient is injured due to surgery performed on the wrong site, he or she may require additional procedures to fix problems exacerbated due to the surgical error. Patients and their family members are left with hefty medical bills. These costs should be taken into consideration when calculating the financial consequences of medical malpractice claims.

The majority of times surgeons are accountable for surgical errors. They are responsible in preparing the patient for the procedure, checking the medical records and chart of the patient, communicating with the rest of the medical staff, and ensuring that the incision was placed in the proper location. However, in some instances hospitals or anesthesiologists may be held accountable. Medical malpractice lawsuits are usually filed in state courts. However, under certain circumstances, they can be transferred to federal courts.