Cases involving defective medical devices
When patients are injured by doctors or other medical professionals, as a result of those individuals failing to perform their duties competently, there may be a claim for medical malpractice. Medical malpractice claims have certain procedural requirements that must be followed and these requirements differ from one state to the next. There are some general requirements, though. When pursuing a claim for medical malpractice, know that the medical device manufacturers and malpractice insurers for the medical professionals will try their best to fight your claims. Medical lawyers are experienced in fighting this battle, so contact one as soon as possible to preserve your rights.
Basic elements of a medical malpractice claim
There are four elements required to be proven in every medical malpractice claim, regardless of the type of injury that was sustained. First, a doctor-patient relationship must be demonstrated. Next, it must be shown that the doctor in question was negligent and that negligence caused your injuries. Finally, you must show that the injuries you suffered resulted in the damages for which you seek compensation.
The doctor-patient relationship
A threshold fact that must be established is the doctor-patient relationship. While this may seem obvious, there may be a situation where this element is missing. For instance, you cannot sue a physician based on advice you overheard him giving to someone else at a dinner party. In other words, it must be shown that you actually hired the doctor to treat you and the doctor agreed to be hired. The most common situation where this issue arises is when a consulting physician did not actually treat you directly.
Negligent conduct by the doctor
One common misconception many patients have is that simple disagreement with your treatment or its results is grounds for a medical malpractice claim. That is not the case. No matter how unhappy you may be with your treatment or your doctor’s bedside manner, if he or she was not negligent in providing your medical treatment, you do not have a claim. Specifically, you must have evidence that the doctor failed to use the “reasonable skill and care” a competent doctor under the same circumstances would have used. This is the most important element of a medical malpractice case and often the most difficult to prove. Nearly every state requires that the patient offer an expert to establish both what the appropriate medical standard of care is and how the doctor deviated from that standard.
The doctor’s negligence caused the injury
Another important element of a medical malpractice case is establishing that whatever the doctor did or didn’t do, actually caused the reported injuries or damage. The reason this can be an important issue is that most patients are sick or injured when they first come to see the doctor, so it must be proven that the doctor’s actions were the real cause of your injuries. In other words, if a patient dies, it must be shown that illness or injury that the patient was already suffering was not the real reason for the death. An expert witness is typically required to establish this element as well.
The subject injury resulted in specific damages
While establishing that the doctor’s performance was below standard is a necessary element of a medical malpractice case, the patient must have suffered some harm as a result of the doctor’s misconduct. Put another way, a patient cannot sue for malpractice if that patient did not suffer any particular harm. This is true for all personal injury claims. Examples of harm that can be asserted include:
- physical pain
- mental anguish
- additional medical bills, and
- lost work and lost earning capacity
Establishing compensatory damages in personal injury cases
Reimbursement for medical treatment required as a result of the malpractice is the primary component of compensatory damages in these types of cases. Another component may be the estimated costs of any future medical care, as well as compensation for the patient’s inability to return to work.
If you have questions regarding medical malpractice or any other personal injury issues, contact us online or call the Cottrell Law Office at (888) 433-4861.
Wesley Cottrell
Wes Cottrell earned his B.A. from Pittsburg State University in 1981 and his J.D. from the Washburn University School of Law in Topeka, Kansas in 1985. He was admitted to practice law in Kansas in 1986, in Missouri in 1987, in Arkansas in 1989, and Oklahoma in 1993. He is licensed to practice law in the United States District Court for the District of Kansas, eastern Arkansas, western Arkansas, and western Missouri. He was Deputy Prosecuting Attorney in Crawford County, Kansas from 1987-1989.
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