Medical Malpractice Liability
Created by FindLaw's team of legal writers and editors | Last reviewed June 20, 2016
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Maybe you had surgery and discovered that a surgical tool was mistakenly left behind. Or, you were recently diagnosed with an illness that you don't actually have. If you've had similar experience, you might have a medical malpractice claim against the doctor, nurse, or hospital at which you where treated. An act of medical malpractice can occur from a medical professional's failure to diagnose a patient correctly, improperly treating a patient, or treating the patient without the patient's permission. FindLaw's Medical Malpractice Liability section offers helpful information if your injury resulted from a medical procedure or a doctor's visit. This section discusses state medical malpractice laws, how a person can prove fault in a medical malpractice case, and possible defenses to a medical malpractice claim. You can also find a helpful section that outlines the first steps to take when pursuing a medical malpractice case.
How to Begin a Medical Malpractice Case
Even though the majority of health care providers aim to exercise the highest standard of care for all of their patients, there are times when things go wrong. If you or someone close to you has had a bad medical experience that resulted in harm or injury, you may be entitled to medical malpractice recovery. It can be overwhelming to deal with poor medical treatment or a negative experience with a health care provider, but there are some basic steps you can follow to pursue a medical malpractice claim:
- Find out the time limit, referred to as the statute of limitations, to file a medical malpractice claim.
- Before filing a claim, contact the medical professional to understand what might have gone wrong, and allow the doctor to determine if your issue can be fixed.
- If contacting the medical professional doesn't help your situation, you can contact the relevant licensing board, which can issue a warning or discipline the medical professional.
- Find out if you need to get a "certificate of merit" to determine that the injuries or harm you suffered was the result of negligence by the health care professional.
Medical malpractice cases can be stressful and complex, so contacting a medical malpractice attorney can be very helpful. An attorney can help you figure out if you have a strong case, and help you with the necessary steps toward a recovery. The attorney can also help you determine if it's better to accept a settlement or proceed to court. It's important to remember, however, that whether or not to accept a settlement is solely your decision.
Defenses to Medical Malpractice Cases
If you've decided to file a medical malpractice claim, it's important to know some of the defenses that the medical professional may employ. Medical malpractice is in essence a type of negligence, which means that any defense available to a general negligence claim is also available in a malpractice claim. The most common defense to negligence and medical malpractice is to disprove an element. As a quick summary, the elements of negligence are duty, breach, causation, and damages. For example, a doctor can argue that his or her care was in line with the standards upheld in the medical community, which is basically an argument that he did not breach his duty to the patient.
Another defense that a medical professional can assert is contributory negligence. If the doctor can show that the injury or harm wouldn't have occurred if the patient hadn't acted in negligent manner, then he or she would have a valid defense to a medical malpractice claim. Examples of a patient's negligent acts are if the patient goes against the doctor's orders or fails to disclose key elements of his or her medical history.
There are other defenses as well, including the respectable minority principle and Good Samaritan laws. The best way to know what you're up against is to hire an experienced attorney. Knowing these defenses, and discussing your case fully with your attorney can help you and your attorney determine the strength of your medical malpractice case.
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