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What does it take for a medical malpractice suit to be successful?

What does it take for a medical malpractice case to be successful?

While the criteria for medical malpractice lawsuits will differ from state to state, they are consistent in that the plaintiff must be able to prove that the medical professional has been negligent, and that negligence resulted in significant damages and expenses to the plaintiff, who was their patient. 

While medical malpractice insurance, (otherwise known as professional liability insurance) will protect clients against medical malpractice, it is also important to try and keep claims to a minimum.

As medicine is a very complicated field where there is often not a clearly defined “right or wrong decision,” negligence is measured against a ‘standard of care,’ a legal term referring to a reasonable benchmark for care that medical professionals have to their patients. The practitioner must have knowingly or unknowingly neglected that ‘standard of care,’ which resulted in the patient’s injuries.

As well as proven negligence, the plaintiff must have suffered a legitimate injury, resulting in damages that the plaintiff should be compensated for.

The four Ds of medical malpractice

You will often hear of ‘the four Ds of medical negligence,’ which refer to the four criteria that must be present in order for medical negligence to be proven. If one of these criteria is not present, the medical malpractice case is unlikely to be successful.

These four D’s are:

  1. Duty of Care
  2. Dereliction of Duty
  3. Direct Causation, and
  4. Damages

1. Duty of Care

To be sued, the medical professional must owe a professional duty of care to the plaintiff in the first place. This is something the medical industry automatically places upon any medical professional or facility that accepts a patient.

So if you have had anything to do with the treatment or diagnosis of the plaintiff, you have a ‘duty of care’ towards that person, which is why there is often more than one defendant in a malpractice lawsuit.

In a hospital or medical centre, where a number of physicians have seen or followed up on a patient’s treatment, each physician has a ‘duty of care’ toward that patient along with any specialist who was involved in the diagnosis, treatment and monitoring of the patient.

2. Dereliction of Duty

To be sued, the medical professional must owe a professional duty of care to the plaintiff in the first place. This is something the medical industry automatically places upon any medical professional or facility that accepts a patient.

So if you have had anything to do with the treatment or diagnosis of the plaintiff, you have a ‘duty of care’ towards that person, which is why there is often more than one defendant in a malpractice lawsuit.

In a hospital or medical centre, where a number of physicians have seen or followed up on a patient’s treatment, each physician has a ‘duty of care’ toward that patient along with any specialist who was involved in the diagnosis, treatment and monitoring of the patient.

3. Direct Causation

Even if dereliction of duty can been proven, it must be linked directly to the plaintiff’s injury, illness or wrongful death of their loved one, for the litigation to have a chance of success.

So there must have been a breach of the duty of care owed to the plaintiff by the medical professional, which directly caused the damages in question. Without this proximate cause, there can be no medical malpractice case.

This direct cause could not be proven if for instance, the plaintiff claimed that a physicians delayed diagnosis led to the decline in health, but they suffered from a terminal illness which caused that decline. Another example is when the damages were caused by a patients refusal to follow the advice of the medical professional or take prescribed medication.

The medical professional’s mistake must be the primary cause of the plaintiff’s damages.

4. Damages

Finally, there must have been some damages. A plaintiff can not claim compensation from a medical professional, even if he or she was negligent, if their breach of duty did not cause any compensable losses.

They must be able to prove specific, quantifiable damages directly related to the medical professional’s negligence, errors or omissions.

Compensation can amount to millions of dollars, where the plaintiff’s damages include pain and suffering, lost earning capacity and lost quality of life. They would also be compensated for past and future hospital and medical expenses, legal fees relating to the litigation and punitive damages.

Without the requirement to prove damages, medical professionals would be tied up with a parade of medical malpractice cases from people who just want to be heard, have questions answered, or just have an axe to grind.

Summary

As you can see, many factors must come together in order for there to be a proven case of medical malpractice. 

However, this does not guarantee that lawsuits will only proceed where all of these factors are present. Bad record keeping or records that are altered may also convince a jury to decide in favor of the plaintiff, where malpractice is difficult to prove.

Emotion drives a large percentage of medical malpractice claims and many could have been prevented simply through better communication by the medical professionals involved in the treatment.

Refer to the articles on preventing malpractice claims or malpractice litigation for Skilled Nursing, Senior Living & Assisted Living Facilities.

 

 

insurance for hospitals

Hospital Insurance typically covers all or part of the potential liability for hospital services. It includes medical malpractice, accidents involving hospital employees and equipment, care during surgery or any other invasive treatment, after-hours care arrangements by staff who need help with their children and more.

insurance for long term care facilities

Long term care facilities must protect themselves against potential liability arising from incidents within their facility. Westwood can help you negotiate a package tailored to your long term care facility client.

insurance for physicians

The different types of insurance for physicians includes medical malpractice insurance, professional liability insurance, errors and omissions insurance, an umbrella policy, and professional indemnity. As a physician, you should have access to all of these types of insurance.