Medical malpractice and negligence laws can be confusing, but a good lawyer will always be willing to offer you the advice you need.

Medical malpractice is when a medical professional fails to meet the standard of good medical practices in that particular field. Also referred to as medical negligence, medical malpractice occurs when a health care provider, whether it be a nurse, doctor, hospital or HMO, does something that a competent provider would not have done and that resulted in a patient’s personal injury or wrongful death.

Here is an article from FindLaw.com with some information on the specifics involved in proving a medical malpractice case.

If you think that you or a loved one have been a victim of medical malpractice, please contact our office and we will help you preserve your rights.

Proving Fault in Medical Malpractice Cases

Legal liability for injuries caused by medical malpractice can be established under a number of legal theories:

Negligence

Most medical malpractice cases proceed under the theory that a medical professional was negligent in treating the patient. To establish medical negligence, an injured patient, the plaintiff, must prove:

• The existence of a duty owed by the health care professional to the plaintiff (for example, a doctor/patient relationship);
• The applicable standard of care, and the health care professional’s deviation from that standard, which is deemed a breach of the duty owed the patient;
• A causal relationship between the health care professional’s deviation from the standard of care and the patient’s injury;
• Injury to the patient.

To find a medical professional negligent, it must be shown that his or her conduct fell below a generally accepted standard of medical care. To establish the standard to be applied, a plaintiff must present the testimony of another medical expert, qualified in the same area of medicine as the defendant, indicating what standard, or level of care, is commonly met by those recognized in the profession as being competent and qualified to practice. The plaintiff will have to present expert testimony not only as to the applicable standard of care, but establishing that the defendant failed to meet this standard.

Negligent Prescription of Medications or Medical Devices

A medical professional may be held liable for the negligent prescription of a medication or medical device if he or she ignored the manufacturer’s instructions, or prescribed an incorrect medication or dosage, which resulted in injury to the patient. In some cases, a pharmaceutical manufacturer may be liable where a drug caused a patient injuries, but only if the manufacturer failed to warn of potential side effects or dangers of the drug. In most cases, the prescribing physician is considered a “learned intermediary,” which means that because of his or her superior medical knowledge, and the fact that he or she has been given adequate information from the manufacturer, he or she is in the best position to determine whether a particular drug or device is appropriate for a patient. Thus, the physician has the primary duty of advising the patient of the risks and side effects of a medication or medical device he or she prescribes.

Informed Consent

In many situations, the failure to obtain a patient’s “informed consent” relative to a procedure or treatment is a form of medical negligence, and may even give rise to a cause of action for battery. Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient’s written consent to proceed.

Breach of Contract or Warranty

Although doctors very rarely promise specific results from procedures or treatments, in some cases they do, and the failure to produce the promised results may give rise to an action for breach of contract or breach of warranty. For example, a plastic surgeon may promise a patient a certain result, which result may be judged more easily than other types of medical results, simply by viewing the patient. Similarly, if a patient is not satisfied with the outcome of a procedure, and the physician had guaranteed or warranted a certain result, the patient may attempt to recover under a theory of breach of warranty.

There is no absolute way to know whether or not you should or need to file a claim against a medical provider for medical malpractice, but if you are unsure, it is a good idea to speak with a lawyer first. Your lawyer will have a better idea of whether your situation fits into the complexity of medical malpractice law.  We at Bander, Bander & Alves would be more than happy to give you advice about medical malpractice and whether it is the right legal avenue for you and your loved ones.