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.
What is a Wrongful Death claim?
A “wrongful death” claim arises when one person dies as a result of the negligence or intentional conduct of another. A wrongful death claim is a specific type of personal injury claim. Yet a wrongful death claim is different in that the person who was injured cannot bring his or her own lawsuit for damages. Instead, the personal representative of that person’s estate is allowed to file the claim.
How a personal injury law firm can help in proving wrongful death
When you file a wrongful death lawsuit 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.
Three legal elements of a negligence claim
Every legal claim has specific elements that must be proven if you want a chance at winning. A negligence claim has three basic elements. First, you must establish there was a duty of care that was owed to the person who was injured. Then you must show that there was a breach of that duty (or that it was not fulfilled) and that breach caused the injuries claimed. The injuries must always be proven in any lawsuit. In wrongful death cases, however, the decedent’s death is an automatic form of damages for which recovery is available if the other elements are established. Survivors of the deceased may also seek compensation for their own losses related to the untimely death of their loved one.
Proving medical negligence
The requirements for establishing medical negligence are a little more specific than a basic negligence case. To show medical negligence in a wrongful death case, it must be shown that the person’s death was caused by a negligent act or omission by a doctor or other health care professional. Those health care professionals can include surgeons, nurses, physician’s assistants, dentists, pharmacists, pathologists, toxicologists, pharmacologists, technicians, nursing homes, hospitals, medical practices, urgent care clinics, emergency rooms and many others. A personal injury law firm can help you make sure you have met all of the elements of your 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.
How medical negligence claims are different
In a 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.
If you have questions regarding medical malpractice or any other personal injury concerns in Arkansas or Missouri, please contact the personal injury law firm of Cottrell Law Office for a consultation, either online or by calling us as (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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