Introduction to Medical Malpractice:
Do You Have a Valid Case?

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Most people think any mistake by a healthcare provider equals medical malpractice, but that's simply not true. Doctors are allowed to make mistakes. They aren't infallible machines, they're human beings. It's wrong to think that any medical error, no matter how minor, is grounds for a lawsuit.

Definition of Medical Malpractice - an action or omission by a healthcare provider, which falls well below the acceptable standard of care that other healthcare providers would have given under the same circumstances, resulting in injury to the patient.

Two conditions must exist for a valid medical malpractice case:

  1. A healthcare provider provided treatment below the medical standard of care
  2. The provider's action or inaction resulted in a verifiable, serious injury

Example: Prescription Error

Alice had been coughing for a few days, and went to see a primary care physician. Before seeing the doctor, she completed a medical questionnaire. In the "Allergies to Any Medications" section, she clearly wrote Codeine. Alice's doctor prescribed Tylenol 3 for her cough. She hadn't taken it before, and had no reason to question its make-up.

After taking the medication, Alice got a high fever and began to vomit. Her family rushed her to the emergency room. While waiting to see the ER doctor, Alice filled out the hospital's medical questionnaire, and again wrote she was allergic to codeine.

The emergency room doctor explained that the primary ingredient in Tylenol 3 was codeine, and her symptoms were an allergic reaction to it. He told Alice to go home and rest, drink plenty of fluids, and not to take any more Tylenol 3. He said she'd feel better in the morning, once the codeine left her system.

Legal arguments

There's no doubt Alice's primary doctor prescribed the wrong medication. Taking it caused her extreme allergic reaction. This was definitely a medical error, but was it malpractice?

Alice's case isn't very strong. At most, she may get reimbursed for the cost of her emergency room visit, possibly a day of lost wages if she missed work, and maybe a small amount for her psychological trauma. Unfortunately, recovering even a small amount will be extremely difficult.

In the great scheme of things, Alice's injury was minor. The episode didn't cause a permanent loss of body function or disfigurement. Her pain was fleeting, over within 24 hours. Although it greatly upset Alice and her family, her damages were negligible.

Qualifying the Injury

To successfully pursue a medical malpractice case, there has to be a serious injury. Being ill for 24 hours may seem serious at the time, but it's minor compared to real malpractice. If Alice's symptoms had resulted in a heart attack, or caused permanent injury to her esophagus, trachea, or stomach, then she'd have a substantial malpractice case.

The definition of medical malpractice states, the healthcare provider's actions or omissions must have fallen far below the standard established by other healthcare providers. That doesn't just mean a mistake, it means a very serious mistake, with serious consequences.

The medical system allows mistakes, even the best doctors make them. To be medical malpractice, the mistake must have been much greater than the usual mistakes other doctors would make under similar circumstances.

There's no set formula or book you can reference to see if a healthcare provider's mistake was grounds for medical malpractice. Each case is unique, and stands on its underlying facts. Often, the issue of whether or not malpractice actually occurred isn't decided until a jury gives their verdict.

Do You Have Valid Case?

If you think your case meets the definition of medical malpractice, consult with an experienced attorney immediately. You'll need one with the specialized expertise required to represent you in a medical malpractice case.

Most reputable attorneys don't charge a fee for an initial office consultation. If you really want to know if you have a legitimate, potentially lucrative medical malpractice case, you'll have to start with that consultation.

Don't even try to represent yourself in a malpractice case.

Unless you file a lawsuit, chances are you won't get any cooperation from the healthcare provider. This isn't like a car accident claim. You and the healthcare provider won't exchange insurance company information. The only chance you have in a med mal case is to hire an attorney and file a lawsuit.

Once you file the lawsuit, you'll have to go through a legal discovery process, which is well beyond the abilities of a non-lawyer. Even if you are able to get some information, the healthcare provider's attorneys will make sure it's the minimum the law requires.

Getting through a wall of defense attorneys is very difficult. You will be purposely blocked and diverted by experts in this genre of the law. Unless a top-notch medical malpractice attorney agrees to take your case, don't delude yourself with expectations of success.

Identifying the Healthcare Provider

When the issue of medical malpractice comes up, most people immediately think of doctors. Doctors do commit medical malpractice, but they aren't the only healthcare providers who do. Almost anyone who provides healthcare can be guilty of malpractice.

A healthcare provider is an individual or medical entity who provides:

  • Preventive medical care and counseling to individuals
  • Medical care for the purpose of treating illnesses
  • Rehabilitative care to individuals
  • Ancillary support to other healthcare providers

Examples of medical healthcare providers:

  1. Medical and osteopathic doctors, including:
    • General practitioners and internists
    • Surgeons and other specialists
    • Dentists and oral surgeons
    • Physician's assistants
  2. Nurses, including:
    • Licensed vocational nurses
    • Registered nurses
    • Nurse practitioners

Healthcare providers can also be:

  • Hospital corporations
  • Walk-in medical clinics
  • Medically certified midwives
  • Pharmacists
  • Medical laboratories
  • Psychologists
  • Paramedics

Don't Pursue a Malpractice Case Without Counsel

You must never attempt to represent yourself in a medical malpractice case. Doctors almost never settle out of court. Their reputations are at stake. Once they admit malpractice, their record is forever scarred, and future plaintiffs could use their record against them.

Doctors pay thousands of dollars in malpractice insurance premiums. When a case is filed against them, they expect and receive the most aggressive legal representation available. These attorneys will stop at nothing but the complete exoneration of their client-doctors.

To win your medical malpractice lawsuit, you must have the best attorneys on your side. Unfortunately, unless your case has the potential for a huge award, you might have a hard time finding an attorney to represent you.

Successfully pursuing a malpractice case takes hundreds (sometimes thousands) of attorney work-hours. On top of that, it costs thousands of dollars to hire medical experts and private investigators, take depositions, and pay for other legal costs. Be persistent, and hopefully you'll find a great attorney to take your case.

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