When death or injury involves medical care and possible negligence, the assistance of a medical malpractice lawyer can be invaluable. Medical negligence cases are usually complicated to litigate and sometimes difficult to prove. Doctors and other health care providers are expected to follow certain standards of care as they perform their jobs. When they fail to follow the applicable standards, there may be a claim for negligence.
What is the standard of care?
The phrase “standard of care” in the medical setting is determined by what a competent physician would do under similar circumstances. Every state has their own specific statement of that standard for all physicians practicing within their state. The standard of care is used as a guide for determining liability. If a physician does not follow the applicable standards for some reason, there may be a medical negligence or malpractice case.
Common examples of medical negligence
Medical negligence typically involves errors in diagnosis, treatment or management of an illness or injury. Some common examples include surgical errors, failure to properly monitor a patient during surgery, insufficient staffing or training in hospitals or emergency rooms, negligence relating to births, improper anesthesia or incorrect medication, or failure to diagnose or misdiagnosis of an injury or illness.
On the other hand, there are certain claims such as “wrongful birth” or “wrongful life” claims, which are often confused with wrongful death claims. These types of claims are referred to as birth injury claims, and here is what you need to know about them.
What are birth injury claims generally?
Birth injuries are a very unique type of personal injury claim. These particular claims are based on the birth of a child who has severe deformities or birth defects that were caused by the negligence or misconduct of a third-party, typically a health care provider. While birth injury claims may not be as common as wrongful death claims, they happen often enough that your medical malpractice lawyer should be experienced enough with them to help.
What is a wrongful birth claim?
Wrongful birth claims are typically brought by the parents of a child who was born with a severe medical condition. The condition could take the form of a birth defect or a life-threatening medical condition. Wrongful birth claims stem from allegations that the health care provider misdiagnosed the condition of the fetus. Essentially, the argument is that, if the parents had known about the possible risks or been given sufficient medical information, they would have terminated the pregnancy rather than bring a child into the world, knowing the child would suffer from a serious medical condition.
How is a wrongful life claim different?
A wrongful life claim is not really that different. This type of claim is based on the principle that, had the parents known of the substantial risk of birth defects early on, they would never have conceived the child in the first place. Essentially, these claims stem from a lack of information before conception. For example, a wrongful life claim would be filed by the child who developed severe birth defects due to the doctor’s failure to provide proper genetic counseling regarding the likelihood of fetal abnormalities.
How medical negligence claims are different
Basically in every medical negligence claim, duty is the key negligence element for proving the case. The duty establishes the necessary legal relationship between the two parties and the standard of care that is expected of the health care professional. Breach of the duty is shown by evidence that the medical professional did not adhere to the applicable standard of care. Typically, expert testimony is necessary to establish both that the appropriate standard of care and that the accused did not meet that standard. Finally, you must be able to show that the alleged medical negligence caused the death. Put another way, it must be established that the person died because of something the medical professional did or did not do.
How a medical malpractice lawyer can help in proving birth injury claims
When you file a lawsuit based on a birth injury claim, there are specific elements of proof that must be shown to the court before damages will be awarded. At a minimum, the representative of the deceased must show that the person who caused the decedent’s death was negligent, and that negligence actually caused the decedent’s death. But, proving negligence and causation is not always a simple task. That is where the expertise of a medical malpractice lawyer can be of great value.
If you have questions regarding birth injuries, or any other medical malpractice concerns in Arkansas or Missouri, please contact the Cottrell Law Office for a consultation, either online or by calling us as (888) 433-4861.
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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