Medical negligence happens all around as reports about drug errors and botched surgeries keep coming in.
There are numerous cases when health care providers and doctors appear to be at fault in treating patients that can aggravate their sickness or disease and even cause injuries.
Many such cases could be fit for claiming compensation under the personal injury laws by suing the errant doctor, physician, surgeon or any other healthcare provider but only a brain lawyer LA
can assess the case and suggest its merits to decide if it would be worthwhile pursuing.
Claimants of medical malpractice must know the chances they have of winning the case which only the lawyer can help in assessing. Every case is unique, and the facts are there for all to see that makes it impossible to form a list of medical malpractice cases that have higher chances of winning.
Going by the principles of natural justice on which the personal injury laws are built, the likelihood of winning cases is higher when it is possible to establish fault without any dispute that the health care provider failed to discharge the duties that amount to medical negligence.
There must be clear evidence that the patient was harmed by something that should not have happened like performing surgery at the wrong site or leaving an instrument inside the patient’s body after completing the surgery. However, proving medical negligence and malpractice
is far from easy because although the harm suffered might be quite visible, establishing liability of the defendant is very tough.
Just because a patient is not happy with the outcome of the treatment does not mean that there has been some medical negligence.
Less than expected outcome does not amount to malpractice
Medical science has progressed immensely, and modern medicines are far more effective, but still, no one can guarantee a cure after completing any treatment or procedure.
No healthcare professional will ever give any guarantee about the outcome of the treatment, although if successful, they will not hesitate to take credit.
Despite the best efforts of medical professionals and healthcare providers, medical treatment can go wrong and the reasons for it not known in most cases. Therapies suggested by physicians may not work, and it is never possible to foresee complications that may arise from surgical and other procedures.
It is not always right to hold medical professionals responsible for the outcome of treatments and procedures whenever it fails to produce the desired results because had it been that way, not only would the legal system stall the practice of medical professionals but also rendered it economically untenable.
What then amounts to malpractice?
One must understand the basic tenets of medical treatment to understand what constitutes medical malpractice.
Instead of using the results of treatment and procedures, which can be widely divergent for various reasons, to determine if medical malpractice has occurred it is more practical to consider whether the medical professional fails to provide treatment that meets the medical standards of care under the circumstances.
This approach is more realistic because medical professionals are liable to the extent of ensuring that the treatment and procedure meet the set medical standards.
The approach takes into consideration what any other competent and skilled medical professional of similar background with the same medical community would have done under the same circumstances.
The biggest stumble block that one faces is to establish what constitutes standard medical care that the professional was supposed to meet and whether the medical professional acted on the contrary.
To reach at a definite conclusion about the deviation from standard practice, in most medical malpractice cases both sides hire expert witnesses to tell the jury about what constitutes in an ideal scenario of the medical treatment or procedure and how much the accused medical professional could achieve.
It is up to the jury
Unless it is a clear cut case, it is very difficult to ascertain ahead of time if the doctor committed any medical malpractice in the eyes of the law. The expert medical witnesses are experts in their fields in which they testify for the case.
The jury, after hearing the presentations of both sides and listening to the testimony of experts which are often conflicting, must decide whether it is a case of medical malpractice or not.
Medical malpractice – when it is easy to identify
Some situations that we come across tell us that medical malpractice has happened and it is easy for the layman to confidently point out the lapses on the part of the medical and healthcare professionals.
The most glaring example is when the surgeon leaves a foreign body like a sponge or some other object inside the patient’s body. It can also happen that surgeons perform surgery on a wrong patient or the wrong limb or in the wrong spot.
Doctors and surgeons are responsible for apprising patients about the risks of treatment or procedure in case it occurs in more than 5% case and failing to do so are a clear sign of negligence.
There’s a time to file a case
It takes time to detect problems after some medical treatment or procedure, and even if some signs and symptoms appear soon, it might not necessarily be the result of negligence or medical malpractice.
Only after observing for quite some time and correlating the signs and symptoms with the treatment undergone that once might come close to conclude that something was amiss during the treatment.
Therefore it could take two, three, or even four years before you can file the case after extensive preparation to establish the fault.
But every state has rules for filing medical malpractice case within a specified time that varies between states.
It might happen that you cross the limit, and the judge refuses to accept your case no matter how sure you might be that medical negligence or malpractice has happened.
In reality, medical malpractice cases are decided mostly by the performance of the expert witnesses. In the end, the team that presents their case in a better way finds it easy to prevail upon the jury.