What is the Law on Medical Malpractice?

Standards of Care:

The law has a term of art “Standard of Care.” This basically means did the doctor do what other doctors think he or she should have done in the situation? If a doctor did anything other than what a reasonable doctor would have done, then it will be alleged that they deviated from the standard of care. 

An expert will testify as to what he or she believes the standard of care is and that the treating doctor departed from it. Defense experts may testify as to a different standard and that the doctor complied with it. 

How do you know what the standard of care is?

The standard of care is not something that you can find on the internet. It is complex and requires years of medical training to determine. When hiring an expert to review your case, it is important that the expert be from the field or specialty of medicine where it is alleged the deviation from the standard of care occurred.

This is really dependent on what type of injury you sustained while you were being treated by a medical provider and how complex your issue is. If you have slipped and fallen while at a hospital an expert may not be required. But if you have complex brain surgery that results in some injury then multiple experts may be required. 

Negligence Cases

Medical Malpractice law is based under the legal tort of “negligence.” Negligence has four basic elements: Duty, Breach, Causation and Damages.

In a medical malpractice context, the first question you have to ask is: did the doctor have a duty to treat you? If a doctor did not accept you as a patient and referred you to someone else recovering damages can be difficult because if they don’t take you as a patient, they generally owe you no duty. 

The second question is: if they had a duty to care for you, did they breach their duty to treat you within the standard of care? Experts will testify as to what the standard of care is for each specialty involved in your care, and how the treating provider deviated from this standard. Ultimately, the jury will have to decide what the standard is after listening to all the evidence including testimony from all experts. 

If a jury finds that the defendant doctor breached the standard of care, then the next inquiry is to determine if, because of the breach, you sustained injury or damages. Your lawyer must prove that at least one deviation from the standard of care caused you to sustain injury. If a doctor treats you for a headache and misses the diagnosis but ultimately the headache gets better and you don’t suffer any damages, then there is a problem with causation because no injury was sustained. 

Next, there is the issue of damages. If you don’t sustain damages, then you can’t sue someone. You can’t sue someone just because you don’t like them or how they treat you. There must be actual injury sustained. However, mental anguish and emotional distress are injuries which courts recognize. There is a growing understanding of psychological illnesses and the law recognizes suffering for mental and emotional suffering.

Think you have a medical malpractice case on your hands?

Medical malpractice is a complex area of the law and in most cases, there is no simple answer. Ultimately, if you feel as though you might have a case please contact a medical malpractice lawyer today to find out more info about medical malpractice and to discuss the specifics of your case.