Medical Malpractice – An Overview

Medical malpractice occurs when a negligent act or omission by a doctor or other medical professional results in damage or harm to a patient. Negligence by a medical professional could include an error in diagnosis, treatment or illness management. If such negligence results in injury to a patient, a case could arise against the doctor if his or her actions deviated from generally accepted standards of practice; against the hospital for improper care, such as problems with medications, sanitation or nursing care; or against local, state or federal agencies that operate hospital facilities.

Medical malpractice laws are designed to protect patients’ rights to compensation if they are injured as the result of negligence. However, malpractice suits are often complex and costly to win. While theoretically you can seek compensation for any injury caused by negligence, regardless of its seriousness, time and money make it unrealistic to sue for an injury that is minor or heals quickly. Therefore, if you believe you have a medical malpractice claim, it is important to consult with an attorney  in our firm who can help you determine whether your claim is worth pursuing.

Theories of liability in malpractice cases

Negligence

Most medical malpractice cases proceed under the theory that a medical professional was negligent in treating the patient. To establish medical negligence, an injured patient, the plaintiff, must prove:

The existence of a duty owed by the health care professional to the plaintiff (for example, a doctor/patient relationship)

The applicable standard of care, and the health care professional’s deviation from that standard, which is deemed a breach of the duty owed to the patient

A causal connection between the health care professional’s deviation from the standard of care and the patient’s injury

Injury or harm to the patient

One of the most important aspects of a medical malpractice action is establishing the standard of care to be applied to the health care professional. To find a medical professional legally at fault, it must be shown that his or her conduct fell below a generally accepted standard of medical care. To establish the standard to be applied, the plaintiff must present expert testimony not only as to the standard of care applicable, but that also establishes that the defendant failed to meet the standard. In cases where the defendant’s violation of a standard of medical care is so apparent as to be comprehensible to the average person, expert testimony may not be required.

Another element of medical malpractice actions, causation, is sometimes difficult to establish. Specifically, the plaintiff must show that his or her health care provider’s deviation from the applicable standard of care resulted in his or her injury. This is challenging because sometimes there may be other factors that contributed to the plaintiff’s eventual injury.

Informed consent

In many situations, the failure to obtain a patient’s “informed consent” relative to a procedure or treatment is a form of medical negligence, and may even give rise to a cause of action for battery. Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must inform the patient of all potential benefits, risks and alternatives involved in any surgical procedure, medical procedure or other course of treatment, and must obtain the patient’s consent to proceed.

Breach of contract or warranty

Although doctors very rarely promise specific results from procedures or treatments, in some cases they do, and the failure to produce the promised results may give rise to an action for breach of contract or breach of warranty. For example, a plastic surgeon may promise a patient a certain result, which result may be judged more easily than other types of medical results, simply by viewing the patient. Similarly, if a patient is not satisfied with the outcome of a procedure and the physician had guaranteed or warranted a certain result, the patient may attempt to recover under a theory of breach of warranty.

Potential defendants in medical malpractice cases

Medical malpractice can be committed by several types of health care professionals, including doctors, surgeons, nurses, technicians and other hospital workers. In a case where a hospital employee commits malpractice, the hospital itself may be held liable under the legal doctrine of “respondeat superior.” Under this theory, an employer may be held liable for the negligent acts of its employee if the employee was acting within the scope of his or her employment when the negligent act or omission occurred. This doctrine is important to plaintiffs in medical malpractice cases because it helps ensure there will be a financially responsible party to compensate an injured plaintiff.

Wrongful Death Lawyer

A wrongful death case stems from an act of negligence that contributed to or caused a fatality. From one state to another, wrongful death statutes vary. States have some restrictions with regard to wrongful death claims and lawsuits. Contact us to discuss your family member’s fatal auto accident or death due to medical malpractice.

Limitations of ‘s Wrongful Death Statute

In particular wrongful death statute limits the elements of damage that a jury can consider when determining a verdict after a fatal accident. The jury is allowed to consider the level of earnings that the decedent previously contributed to a family as wage earner and as a provider of comfort, advice and companionship — but not pain and suffering of the person before death, and not the family’s emotional pain of grieving.

Maximization of Compensation Through Experienced Legal Advocacy

With these types of limitations in place, it is very important to have an experienced, aggressive attorney advocating for your family. At our law office, we work hard to help a family left behind to move forward financially after an accidental death of a loved one. Contact our lawyers to schedule a no-obligation consultation at a mutually convenient time and place. If you are out of state, we are willing to consult with you by phone or perhaps travel to your location.

Examples of Strategies in Wrongful Death Cases

Some of our lawyers’ time-tested strategies on wrongful death practice include the following:

An extensive exploration of all possible sources of compensation. Some life insurance policies provide for payout of double benefits in the case of an accidental death, for example. Also, there may be an umbrella policy in the name of the injured person or the negligent person — allowing for collection of significant monetary benefits.

Detailed investigation into the lifetime earning capacity of the person who lost his or her life in an accident.

Extensive preparation of persuasive, compelling arguments in support of maximum payout of benefits (by way of settlement or verdict) of a death policy.

MnDOT to study highway pedestrian accidents

Residents may recall hearing about a string of pedestrian accidents within the past few months. One particular stretch of Highway recently experienced four of these accidents within four months.

At least one of the pedestrian accidents resulted in fatal injuries. In November, a 16 year-old girl died after being struck by a vehicle while attempting to cross the highway.

More than 40,000 drivers travel on the highway each day. In addition, it is a popular pedestrian route due to its proximity to several local stores and businesses. Unfortunately, this heavy traffic also makes it a prime location for both pedestrian and motor vehicle accidents. Because of this, the Department of Transportation plans to conduct a study examining the highway with the goal of making it safer for pedestrians.

Many area residents have suggested that building an overpass to separate pedestrian and vehicle traffic could increase safety. The mayor also supports the idea of an overpass. He says including the highway in a current bridge and overpass project would resolve numerous safety issues. They are also working on a plan to develop a separate road off of the highway designed to shield pedestrians from traffic.

Proving negligence in a pedestrian accident

Sadly, pedestrian accidents are occurring more frequently. According to the National Highway Traffic Safety Association, over 78,000 pedestrians are injured after being struck by a vehicle each year.

A pedestrian injured by a vehicle may recover damages if the negligence of another caused or played a role in the accident. All drivers have a duty to exercise reasonable care for the safety of others on the road. Those who don’t can be held liable for the injuries they cause. Examples of not using reasonable care include:

Speeding

Not using turn signals

Driving in poor weather conditions

Driving while under the influence of alcohol or drugs

Texting while driving

Driving while distracted

Steps to take after a pedestrian accident

There are several practical steps that an injured pedestrian should take after a car accident. If it is safe to do so, victims should stay at the scene and promptly call the police. In addition, they should obtain the names and basic information of everyone involved in the accident, including all witnesses.

It is common for drivers to attempt to place blame on the pedestrian. Since fault will need to be sorted out, victims should not make any statements about the accident except to answer questions from the police. This means refraining from discussing the incident individuals not involved in the accident or with insurance companies. Since these statements could be used to assign blame in the future, it is best to talk to a lawyer before making any statements. The lawyer will be able to review the facts of the case to help make sure the victim’s rights are well-protected.