How to Determine if There Was Actionable Malpractice

The first thing that someone who has received medical care that he or she believes was sub-standard must do is get a reasonable assessment of whether medical malpractice occurred. This often leads to confusion as many people think that a poor outcome is all that is necessary to pursue a negligence action against a doctor or other medical professional. However, it is far more complicated than this.

A Bad Outcome Does Not Automatically Indicate Malpractice

As medical science advances, many people have come to believe that most things can be resolved with proper medical care. This leads some individuals who experience a sub-optimal outcome to consider bringing a medical malpractice case, but just because a person did not find himself in the position where he thought he would be after receiving medical care does not mean the facts will support a legal action. There are times when no mistake was made, but a patient does not respond to treatment in the expected manner or experiences a complication. This may happen even if the healthcare provider satisfied the medical standard of care that applied to the treatment or services being provided. It is important to realize that there are no guarantees when undertaking a particular course of treatment. An experienced medical malpractice attorney understands how to review medical records in conjunction with a team of experts in order to make a preliminary assessment about whether there is a potential case. If it does appear that a preventable mistake was made, there will be a conversation about next steps and expectations regarding the legal action before deciding whether to pursue a case.

What Constitutes Medical Malpractice

Medical malpractice happens when a healthcare provider deviates from the standard of care that applies to that area of medicine. These standards reflect the specific distinctions of various practice areas, but the general principle is that a doctor or other medical professional must provide care in the same manner as a reasonable and prudent person in the same role with comparable education, training, and experience would have done under similar circumstances.

In order to establish the standard and prove that there was a deviation from this benchmark, it is necessary to have an expert witness who can testify about what normally happens in a particular field. The expert will have to satisfy the court, as well as the defense attorney, that he or she has suitable qualifications to speak authoritatively on these matters. Proving that a doctor or other person deviated from the standard and caused harm to a patient is a very difficult challenge for many medical malpractice attorneys. It is important to understand the nature of the case before embarking on a path to a legal action.

Are There Cases Where Malpractice is Obvious?

Although most medical malpractice cases are built on circumstantial evidence, there are times when the doctor or other healthcare provider really has no defense. These are the cases where the mistake is so obvious that it often is a matter of establishing the amount of damages to compensate the victim for the harm that was done, rather than focusing on establishing that there was a serious mistake made. A few of these types of error are:

  • A doctor who performs wrong-site surgery – This may happen when a doctor removes the left instead of the right kidney, removes the wrong leg, or operates on the wrong patient entirely;
  • A doctor leaves a foreign instrument in a patient’s body – Often, this involves surgical sponges, gauze, or other materials like this, but surgical tools also have been found inside patients years after a procedure; and
  • A doctor performs an invasive procedure without the patient’s consent – There are emergency situations where this might be permissible, but if there was time to engage in a conversation with a patient and obtain informed consent and the doctor did not do this, then it is malpractice.

Although these cases are very clear, the majority of medical malpractice cases involve the development of a theory and demonstration of the facts that support that conclusion through careful analysis of the medical records and the testimony of an expert witness.

Time Simply May Have Run Out

There are cases where it takes years for a person to realize that he or she has been harmed by the negligence of a doctor. In other situations, a person may have known that an error was made, but did not anticipate the far-reaching consequences of that mistake. By the time these individuals consult with an attorney, it may be too late to bring a malpractice case, even if the doctor made an egregious error that otherwise would have led to a successful outcome in court, because the statute of limitations has run. These time restrictions vary from state-to-state, but they act to bar access to the courthouse completely if the applicable period has closed.

Stern Law, PLLC Works to Obtain the Right Results for Our Clients

It takes a lot of time and effort to develop an effective medical malpractice case and there are many times when it simply will not be possible to hold the doctor responsible for the mistake that he made. At Stern Law, PLLC, our attorney has more than 30 years of experience in reviewing the facts of what happened to a patient and helping that person get the outcome that he or she deserves, if possible. In addition to advocating for clients, we provide resources for those who may have been impacted by the negligence of a healthcare provider, placing compassionate and committed staff on call to answer questions 24 hours a day, seven days a week, about potential medical malpractice. Call us at 1-844-808-7529 or fill out an online contact form in order to learn how we can help you get through this difficult time.

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