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Common Causes of Malpractice Litigation

Malpractice litigation involves a complex process. Whether or not an error is malpractice based on the ability of the patient to establish four legal elements that include a professional obligation breach of this duty; injury resulted from the breach and the possibility of quantifiable damages.

Plaintiffs must be able to prove the elements using evidence, such as expert testimony and depositions.

Misdiagnosis or Failure to Diagnose

The failure of a physician to correctly diagnose an illness or injury can result in grave complications, or even death. A lot of medical malpractice cases involve mistaken diagnosis. To prove negligence the patient or their lawyer must demonstrate that a competent physician under similar circumstances and working in the same specialty would not have misdiagnosed the problem.

A misdiagnosis is not always malpractice. Even experienced and highly trained doctors can make mistakes. Therefore, any claim for malpractice must be backed up by other elements such as breach, proximate cause or actual injury. If a physician fails to sterilize his equipment prior to giving anesthesia and the patient gets infected as a result of this, he could be found to be negligent.

In most instances, lawsuits claiming malpractice will be filed in the state trial court where the alleged misconduct occurred. However, federal courts may be able to handle cases in certain circumstances. A claim may be filed before a federal court in certain circumstances. For example, it may involve the issue of a statute of limitation or when the parties are of different nationalities. Some claims can be resolved through binding arbitration that is voluntary. This is a less formal procedure involving professional decision makers that is designed to reduce costs, expedite legal proceedings and remove the possibility of excessively generous juries. However, arbitration is not accessible for all claims of malpractice.

Dosage for a drug that is not correct

Medication errors--also called medication mistakes--are one of the most common causes of medical malpractice lawsuits. They can result from a doctor writing a prescription that is not correct or administering the wrong dosage to a patient. These mistakes are usually avoidable. According to the circumstances the situation, a pharmacist, a hospital or other health care provider could be held responsible for injuries caused by patients who were given the wrong dose of a drug.

A doctor might prescribe the wrong medication because of a misdiagnosis or by simply misreading the prescription. A health care provider can also administer the incorrect dosage due to a failure in communication. For instance nurses might not read a doctor's prescription correctly or a pharmacist may fail to fill the prescription. In other situations the doctor may delay administering the correct medication to the patient, resulting in their condition becoming worse.

To be successful in a malpractice lawsuit, a victim must show that the medical professional did not meet their standard of care and that the negligence directly caused the injuries. This requires medical experts to testify. Medical malpractice cases also must establish the extent and the damages caused by the victim's injuries. This includes the cost of treatment as well as any wages lost. Generally, the greater a loss is in the greater value of the claim will be.

Incorrect Procedure

This kind of incident is not unusual. It may seem like a challenge for medical professionals to perform the incorrect procedure on patients but it does happen. The surgeon who makes this mistake could be held accountable for negligence. However those who are injured due to a surgical error could also be held responsible for any negligence that occurred during the process.

Any health professional who is accused of negligence must prove that the patient was injured by a specific act or failure to act. To prove this the legal team representing the patient must prove that (1) the doctor was bound by a duty to provide care or treatment; (2) that the doctor violated that duty; (3) that there is a direct and causal connection between the breach and the injury; and (4) that the injury results in damages that the legal system can resolve.

A breach of the duty of care is insignificant unless it causes injury which is the reason medical malpractice claims are usually built on a legal concept called "res ipsa loquitur." This law says that, in many instances certain injuries are so obvious and evident that they cannot be explained except by negligence.

Depending on the facts the plaintiff (the person who filed the claim, or their legal representative) or their lawyer could decide to file a lawsuit in either state or federal court. The majority of malpractice cases are filed with state courts, however in certain situations the medical negligence lawsuit can be brought to federal district court.

Wrong Surgery

Surgery performed on the wrong site is a very rare mistake, but it could be considered medical malpractice if the procedure is carried out on the wrong portion of the body. This type of error usually occurs as the result of miscommunication between members of a surgical team, or production pressure that leads to the surgeon being tasked with multiple surgeries at once. In these cases the surgeon isn't solely accountable for a mistaken-site procedure due to the legal principle known as "res ipsa locquitur" which states that the outcome speaks for itself and cannot be attributed to negligence.

If a patient is injured by wrong-site surgery and is injured, they may require additional procedures to correct issues that were caused by the surgical mistake. Patients and their families are left with high medical bills. It is essential to take these costs into consideration when calculating the financial cost of medical malpractice claims.

The majority of times surgeons are accountable for surgical mistakes. They are responsible in preparing the patient prior to the procedure, as well as checking the medical records and charts of the patient, communicating with the rest of the medical team, and ensuring that the incision was made at the right place. However, in some cases a hospital or anesthesiologist may be held accountable. Medical malpractice lawyers claims are usually filed in state courts, but under certain circumstances they may be transferred to federal courts.