What is Medical Malpractice?

September 21, 2018

When you think about medical malpractice, think negligence. That is the legal theory underlying medical malpractice. Malpractice occurs when a patient suffers a personal injury that happens because a medical practitioner provides negligent or incompetent care.

Types of medical malpractice. Suing a physician for medical malpractice may result from several breaches of care:

  • prescribing an inappropriate medicine (incorrect for the patient’s illness, physical condition, or the patient’s known allergic drug reactions) or dosages;
  • surgical errors;
  • informed consent issues, such as not providing the patient with a description of the risks involved with the prescribed treatment;
  • diagnosis issues, including the physician’s misdiagnosis, delayed diagnosis, or complete failure to diagnose the problem.

Proving medical malpractice. Bringing a medical malpractice action means the burden of providing the evidentiary proof of your claim is on you, the plaintiff. In other words, if you want to prevail when suing a physician or facility for medical malpractice, you need to prove four things:

  • the physician owed a duty to the patient;
  • the physician breached that duty and provided care below the medical standard of care (the patient need not prove intentional injury; a mistake in violation of the standard of care is enough);
  • the inferior care resulted in an injury; and
  • the inferior care was the proximate cause of the patient’s injury.

The toughest challenges for any malpractice case. It’s relatively easy to prove that you are the physician’s patient. You will find medical records, receipts, insurance records, and written communications from the physician useful in proving your physician-patient relationship. Physicians rarely argue against this issue but you must still provide the evidence in order to have legal standing to sue.

  • Battle of the Expert Witnesses. It’s more difficult to prove the physician’s actions violated the standard of care. Proving a violation of medical standard usually requires expert witnesses on both sides of the issue. That is because the case will compare your physician’s actions to what other similarly trained physicians would do. Expert witness testimony can prove expensive.
  • You will also need expert witnesses to say that your physician’s negligent care is what caused your injuries and, for example, that your injuries were not the result of another illness or preexisting condition.
  • Compensation for your injuries may require proof of your lost wages, mental anguish, and additional medicalexpenses incurred as a result of the negligent act.

How much evidence do you need? You will hear your lawyer talk about the burden of proof (remember that’s on you). In medical malpractice cases, like other civil cases, the burden of proof is the preponderance of the evidencestandard. Preponderance of the evidence means that the weight, force, accuracy, and importance of the evidence convinces the judge or jury that the negligence is the cause of your injuries. It doesn’t mean the amount of evidence.

State considerations. You will want to consult a medical malpractice attorney because some states have additional requirements that you must satisfy before you can bring a medical malpractice case. State requirements can include a certificate of merit or a medical board review to grant you the right to bring a case to court.

At Saladino & Schaaf, we have years of experience representing Kentuckians in personal injury lawsuits. If you’ve been injured through no fault of your own, contact us online or at (270) 444-0406 to schedule a free consultation today. You may be entitled to significant compensation, but the clock is ticking.




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