Medical Malpractice By Nationwide Weaver & Associates
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Medical malpractice is defined as a professional negligent act or an omission to act by a health care provider. The health care provider must have deviated from an accepted standard of practice in the medical community that caused injury or death to a patient. Medical malpractice laws and rules are different for each state. The penalties vary greatly depending on what state the malpractice occurred in. Medical malpractice claims are subject to statute of limitations which again differs in every state. This means there is only a limited time during which a lawsuit can be filed.
Medical malpractice can also include any act by a medical practitioner where he does not get informed consent from a patient for a medical procedure that results in harm, regardless if the procedure was performed properly or not. The patient needs to be informed of the procedure including all risks and benefits. If the patient does not have all the necessary information, they will be unable to make an informed choice to either go forward with the procedure or not. Even if a patient goes through with a procedure that was performed error free but injury results, the doctor may be held liable because the patient could have refused the procedure if he was aware of the risks.
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If a physician made some mistake but the patient was not injured in any way, the patient may not recover damages. However, if a doctor misdiagnoses a patient, but while performing surgery discovers a diagnosis that would have required surgery anyway, the patient will probably not be able to bring action against the doctor because the surgery was necessary for the correct diagnosis. If the misdiagnosis results in procedures that were not necessary for the correct diagnosis, the patient will most likely have a claim for medical malpractice.
The plaintiff has the burden of proof to show by a preponderance of evidence that there was medical malpractice. In order to have a successful medical malpractice claim, the plaintiff must prove the following four elements:
- There was a duty owed (there is a legal duty whenever a hospital or health care provider provides care or treatment of a patient)
- The duty was breached ( the health care provider failed to meet the relevant standard of care)
- The breach of duty caused injury
- Damages should be awarded (a loss of either physical or emotional which can be compensated/measured by a monetary value)