Medical malpractice occurs when a health care provider who by an action or omission deviates from the accepted norms of practice in medicine leading to injury/ death to a patient.
Many deaths occur due to medical malpractice. A health care provider is not just the doctor or the surgeon but includes nurses, dentists, therapists, hospitals, clinics etc. Medical malpractice law is derived from the general negligence law.
Various laws have evolved in the US, England, Australia and other countries, which are similar in concept for control of medical malpractice.
Claims are made for negligence, misdiagnosis, improper medication etc. Claims can even be made where informed consent of the patient is taken. Claims can also be made against corporations, hospitals, clinics for the mistake of their employees based on vicarious liability. The patient has the right to claim economic and non-economic damages.
However in medical malpractice cases, the burden of proof lies with the plaintiff (patient). Hence the patient should hire a good lawyer. Three things have to be proved by the plaintiff:
• The health care provider failed to provide adequate and reasonable care to the patient.
• This failure to provide adequate care to the patient has resulted in damage or loss to the patient.
• The health care provider is liable to pay the damages or loss.
The damages are of two types, compensatory and punitive.
Compensatory damages are of two types economic and non-economic damages.
Economic damages are monetary losses like, medical care, medicines and loss of wages.
These damages can be in the past or future. Non-economic damages are the ones like loss of organ or vision, pain, disfigurement, embarrassment emotional stress etc. Punitive damages are very rarely awarded.
Medical malpractice cases are complicated because when the patient is admitted he is already injured or ill and hence the damage caused by negligent medical care has to be assessed independently of the earlier illness or injury.
A further obstacle in medical malpractice case is that expert witness is to be provided by the plaintiff. Very few doctors are willing to testify against another doctor even when the case of negligent care is clear.
On the other hand the defendant lawyers have a pool of doctors to defend the case of negligent medical care. Usually medical malpractice attorney firms provide expert testimony on the care provided by the health care provider. Some medical malpractice lawyer firms provide free case evaluation and take medical malpractice cases on contingent basis that is until the firm wins the case for the client, the client need not pay for the services of the lawyers.
In medical malpractice cases it is vital to obtain the medical records as early as possible by the patient or his representative.
Most healthcare providers take medical malpractice insurance. There has been an ongoing debate by doctors and their medical malpractice insurance companies against excessive jury awards. Generally insurance companies rarely go to trial where large penalties are involved. However it must be remembered that the insurance companies and health care providers are willing to fight it out against spurious medical malpractice claims. The procedure for filing a medical malpractice claim varies from state to state.
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