What Qualifies as Medical Malpractice?
Medical malpractice occurs when a doctor, nurse, or other healthcare professional causes harm by doing something incorrect. Malpractice requires that the healthcare provider departs from the applicable standard of medical care in a particular specialty or area, which results in harm to a patient that would not have otherwise occurred.
To establish a medical malpractice claim, two key elements must be present:
1 – There was a breach of duty of care. This means that the provider did something that a reasonably competent and skilled healthcare professional in the same field would not have done under similar circumstances. If a nurse, a physician, or other healthcare professional fails to provide proper treatment, a deviation from the standard of care occurs.
However, the law recognizes that it is not medical malpractice if a bad outcome or injury occurs that is a known complication of a condition, surgery, or treatment. The law also recognizes that it is not medical malpractice if there is injury or a bad outcome when a provider exercises judgment in deciding among several different but acceptable methods of treatment about how to treat a condition.
Only actions and decisions that are not what a prudent practitioner would do in the same situation qualify as medical malpractice.
2 – One must also demonstrate more likely than not that the medical error caused actual harm to the patient. Establishing a causal connection between the provider’s medical negligence and the harm to the patient is required for the patient to receive compensation for injuries. However, a claim of medical malpractice depends on whether the physician’s failure to properly identify and treat a condition led to a death or injury that could have been avoided had there been timely diagnosis and treatment that would have created a different outcome.
If the requirements for a medical malpractice claim are met, a patient can be compensated for the injuries directly related to the error. Damages can include physical pain and suffering, loss of enjoyment of life, cost of past and future medical care, wage and economic losses, and emotional injury.
How Common Is Medical Malpractice?
The National Practitioner Data Bank (NPDB), a federal database that tracks medical malpractice claims, reports that there are on average 47,000 medical malpractice claims filed each year in the United States. Settlement of cases with medical merit and that are properly prepared account for the majority of the payments. Cases that go to trial most often result in a defense verdict without any payment. Nursing and other medical negligence payments would be in addition to those.
According to the American Medical Association’s (AMA) 2016-2022 Physician Practice Benchmark Surveys, OB/GYNs, general surgeons, other surgeons, and orthopedic surgeons are at highest risk for medical malpractice claims, with 62.4 percent, 59.3 percent, 55.5 percent and 47.2 percent, respectively, of those physicians having ever faced a claim.
Do I Have a Medical Malpractice Claim?
In order to know if you have a medical malpractice claim, an experienced medical malpractice attorney needs to obtain all the relevant medical records and have them reviewed by appropriate physicians, specialists, and other health care providers who practice in the areas of medicine involved in the potential lawsuit. Medical experts must identify specific deviations from the standard of care by the defendants, and then causally connect the deviations to the injuries, which include the lost chance of cure.
Even though distinct jurisdictions may have differences in the specifics concerning the qualifications of medical experts and the amount of causal connection required to sustain a malpractice claim, expert medical testimony is always required to establish all the elements of the claim. Other experts need to testify as to damages, including the cost of lifelong care and economic losses.
What Does a Malpractice Case Involve?
A medical malpractice case involves a commitment of time and money on both the part of the patient and attorney to investigate, substantiate, and then prosecute a claim to resolution. Medical malpractice lawsuits usually take years to resolve and involve significant costs for experts and court.
- Office and hospital records, imaging studies, and billing and insurance information must be gathered, organized, evaluated, and sent for expert review.
- Medical expert review is required to know if there is a probable medical merit to a medical malpractice claim and whether one can be filed.
- All elements of deviation from standard of care, causal connection between medical negligence and injury, and damages need to be determined before filing a lawsuit.
Because of the complexity of medicine and the quality of medical experts on both sides of the case, medical malpractice cases require the utmost skill to be resolved successfully. Attorneys who handle medical malpractice cases must be prepared to try the case, because settlement is not easily achieved.
If you think you have a valid malpractice claim in New Jersey, contact Britcher, Leone & Sergio, LLC to review your case.