Wondering, “how do I know if I have a medical malpractice case?” Medical errors can occur during any type of medical care, but when they are caused by a medical professional’s negligence or improper actions, patients become victims of medical malpractice. Patients who suffer illnesses, injuries, disabilities, or death due to medical malpractice have a legal right to file a medical malpractice claim against the guilty party to recover compensation for damages.
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Understanding Medical Malpractice
Medical malpractice occurs when a medical facility or health care professional deviates from the accepted professional standard of care given to a patient. According to medical statistics, there are between 15,000 and 20,000 medical malpractice lawsuits filed each year against hospitals, physicians, nurses, and other types of medical professionals in the United States.
Hospitals, healthcare clinics, physicians, surgeons, nurses, dentists, chiropractors, and other medical professionals take an oath to provide proper care and protect their patients from harm. They are expected to exercise the utmost caution when treating patients to avoid substandard care that can result in injury.
Patients who suffer illness, injury, or disability after receiving medical treatment or undergoing a medical procedure often ask, “how do I know if I have a medical malpractice case?” To prove medical malpractice occurred, you must demonstrate the 4 D’s of medical negligence:
- Failure to Provide a Proper Standard of Care – The law requires that healthcare professionals adhere to medical standards. If care falls below these standards due to negligent or improper action, it may be considered medical malpractice.
2. Breach of Duty Occurred – Breach of duty occurs when a doctor/patient relationship exists and the doctor does not follow his or her duty of care. This typically occurs when the doctor fails to provide care to the level that an equally trained professional would.
3. Breach of Duty Caused Patient Harm – When a breach of duty exists, there must be proof that the breach caused the patient harm such as illness or worsening condition, physical injury, temporary or permanent disability, or death.
4. Patient Harm Resulted in Damages – Patient harm must be linked to damages caused by substandard care or negligent actions. Damages may include medical expenses, loss of a job or income, and physical or emotional pain and suffering.
Common Types of Medical Malpractice
- Misdiagnosis or missed diagnosis of a patient’s condition
- Failure to treat or delayed treatment of a patient’s condition
- Prescribing the wrong medicine or dosage
- Giving the wrong dose of anesthetic for surgical procedures
- Performing surgery on the wrong patient or body part
- Failure to follow up with patients after medical treatment or surgery
Medical malpractice occurs frequently in a variety of patient medical treatments and procedures, but it is also responsible for a high rate of birth injuries during childbirth.
Brachial plexus injuries that occur during childbirth are often caused by medical negligence on the part of the physician, the midwife, or the delivery team. Brachial plexus injuries in newborn babies are common. They are often caused by the baby’s head or shoulders getting stuck in the birth canal. When doctors or midwives tug on the baby during birth, the brachial plexus nerves in the baby’s neck can stretch, causing stretching or tearing in the nerves. These types of injuries can also be caused by the baby’s head and neck being pushed to one side or side to side as the baby moves through the birth canal.
Signs You Have a Medical Malpractice Case
Medical mistakes do happen, but all mistakes are not linked to medical malpractice. Some mistakes are honest or accidental mistakes that are not caused by questionable decisions or actions of a doctor or surgeon.
To prove that medical malpractice occurred, look for warning signs that signal red flags:
- Your doctor did not explain the risks or complications of your treatment
- Your treatment seems inappropriate for your condition or isn’t working as predicted
- Your questions about your treatment are answered with vague or contradictory responses by your doctor
- Your doctor dismisses your health concerns
- You are diagnosed with a serious illness or disease after minimal basic testing is performed
- You receive a second opinion that differs from your doctor’s diagnosis
While these warning signs don’t automatically signal medical malpractice, they are red flags that can signal inappropriate actions and medical negligence on the part of your doctor.
Suspicion of Negligence During Medical Treatment
Medical negligence is an act or failure to act by a medical professional that deviates from the accepted medical standard of care. While medical negligence is usually the legal basis for medical malpractice cases, negligence on its own is not enough to instigate a valid medical malpractice claim.
If you suspect that negligence occurred during a medical treatment, but you suffered no harm or injury, you have no basis for a claim without proof of injury. If you suspect medical negligence during treatment, and you suffer illness or injury from that treatment, you should contact a medical malpractice lawyer who has experience with medical malpractice cases.
Unexpected or Worsened Medical Condition or Injury
If you receive treatment for a medical condition or injury, and the condition gets worse, this can be a red flag for negligence or medical malpractice. When a medical condition unexpectedly gets worse, it may indicate a misdiagnosis, an improper treatment, a missed diagnosis of infection, or injury complications that should have been detected in lab tests, x-rays, MRIs, or ultrasound images. Medical conditions and injuries that suddenly get worse for no apparent reason require immediate medical attention to prevent the possibility of internal bleeding, high fever, sepsis, shock, and even sudden death.
How Can You Gather Evidence for a Medical Malpractice Case?
If you suffered illness, injury, or disability due to a medical treatment or procedure, you should concentrate on how to find a medical malpractice attorney in your area who can help you. To pursue a claim for medical malpractice, you need an attorney who can help you gather the proper evidence for a successful outcome.
An attorney can gather necessary evidence to support a medical malpractice lawsuit in civil court. The evidence needed to win a medical malpractice lawsuit must show proof of negligent or improper action on the part of the medical professional who handled your treatment and care. A medical malpractice attorney also has the knowledge and experience to find valuable information like prior evidence of doctor misconduct and medical complaints against doctors filed by former patients.
Medical malpractice attorneys know what percentage of medical malpractice cases go to trial and what percentage get resolved out of court. Only 5% of medical malpractice lawsuits get resolved through a civil trial in court, while 95% get resolved through settlement agreements handled out-of-court between the plaintiff’s and the defendant’s attorneys.
Medical Records and Documentation
Rely on your medical records. Medical records and documentation are a vital part of a malpractice case. They are considered legal documents that can be used as evidence in medical malpractice lawsuits. Medical records are some of the most important evidence in a case because they contain detailed information about your treatment, including diagnoses, medical procedures, medications, and notes from your doctor. It’s essential to collect all medical records from every healthcare provider involved in your treatment, including records from hospitals, clinics, and specialists.
Expert Opinions and Medical Evaluations
In medical malpractice cases, expert opinions and medical evaluations are often used to support the case. In some cases, doctors who are treating a patient or have treated the patient in the past may express expert opinions about the patient’s medical care, treatment, diagnosis, and prognosis. These treating physician opinions are used to support a medical malpractice claim by providing a professional, and often unbiased-by-litigation, analysis of some aspect of the patient’s case.
An Independent Medical Examination (IME) is a tool used in medical malpractice cases to objectively determine the physical or mental state of an injured claimant. It is carried out by a physician with whom the patient has no existing medical relationship. During an IME, the doctor will observe the patient’s general appearance, look for signs of deception, and review injury reports, charts, and indications of pain and discomfort.
Doctors who conduct IMEs may be employed by an insurance company that has a vested interest in the case, or routinely recruited to examine injured claimants. Anyone who files a personal injury or medical malpractice claim should be prepared to submit to an IME, as they are fairly standard in medical malpractice litigation and generally demanded by the defense. However, patients are advised to speak with their medical malpractice lawyer before undergoing an IME.