When illness or injury forces you to see a doctor or go to medical facility the hospital, you can generally be assured that the doctor's years of experience and training will result in excellent treatment of your ailment. But in truth, doctors are only human and as such, errors are always possible. Medical malpractice occurs when a negligent act or an omission by a doctor or other medical professional results in damage or harm to a patient.

Negligence by a medical professional could include mistake in a 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 departed deviated from generally accepted standards of practice;   or against the medical facility 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 request pursue compensation if they are injured as the result of negligence. However, malpractice suits are often complicated complex and expensive costly to pursue win. While theoretically in theory, you can seek compensation for any injury caused by negligence, regardless of its seriousness, time and expense money make it unrealistic to sue for an injury that is minor or resolves itself quickly. Therefore, if you believe you have a medical malpractice claim, it is important to consult with an lawyer attorney who can help you determine whether your claim is worth pursuing.

Theories of Liability in Malpractice Cases

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

One of the most significant aspects of a medical malpractice action is establishing the standard of care to be applied to the health care professional. Medical professionals are often heard to refer to medicine as an art, rather than a science, and although errors in judgment may result in harm to a patient, not all medical errors are actionable as negligence.

To find a medical professional lawfully at fault, it must be shown that his or her behavior fell below a generally accepted standard of medical care. To establish the standard to be applied, a plaintiff must introduce the testimony of another medical expert, qualified in the same area of medicine as the defendant, indicating what standard, or level of care, is commonly met by those established in the profession as being competent and qualified to practice. The plaintiff will have to present expert testimony not only as to the applicable standard of care, but establishing that the defendant failed to meet this standard.

Another element of in medical malpractice actions, causation, is sometimes difficult to ascertain. Specifically, the plaintiff must show that his or her health care provider's divergence from the applicable standard of care resulted in his or her injury. This is difficult because sometimes, the health care provider's divergence from the standard of care may not have caused the plaintiff's ultimate injury, and vice versa.

If an injured patient does not know precisely what caused his or her injury, but it is the type of injury that would not have occurred without medical negligence, he or she might be able to invoke a legal doctrine known as "res ipsa loquitur," which shifts the burden of proof to the health care professional, to show that he or she was not careless.

Negligent Prescription of Medications or Medical Devices

A medical professional may be held liable for the negligent prescription of a medication or medical device if he or she disregarded the manufacturer's instructions, or prescribed an improper medication or dosage, which resulted in harm to the patient. In some cases, a pharmaceutical manufacturer may be liable where a drug caused a patient harm, but only if the manufacturer failed to warn of possible side effects or dangers of the drug. In most cases, the prescribing doctor is considered a "learned intermediary," which means that because of his or her superior medical knowledge, and the fact that he or she has been given sufficient information from the manufacturer, he or she is in the best position to establish whether a specific drug or device is suitable for a patient. Thus, the doctor has the primary duty of advising instructing the patient of the risks and side effects of a medication or medical device he or she prescribes.

Informed Consent

In many situations, the failure to get 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 exact definition of informed consent may vary from state to state, it means for all intents and purposes that a doctor (or other medical provider) must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient's written 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 doctor had guaranteed or warranted a certain result, the patient may attempt to recover under a theory of breach of warranty.

Legislation Affecting Malpractice Actions

Due to the power and resources of the health care industry, many states have approved legislation making it more complicated to bring and succeed in medical malpractice actions. In most states today, doctor and hospitals are sheltered by legal limits, called "caps," on the total of damages and attorneys' fees that can be awarded in malpractice suits. Also, barring unusual circumstances that affect the case, state laws provide set time-frames within which a plaintiff must file a malpractice action in court.

Certificate of Merit

One obstacle plaintiffs in many states may have to overcome before they can even file a malpractice action against a health care professional is the requirement that they file what is commonly known as a "certificate of merit." In order to file a certificate of merit, a plaintiff will first have to have an expert, usually another doctor, review the relevant medical records and certify that the plaintiff's health care provider deviated from accepted medical practices, which resulted in injury to the plaintiff. The plaintiff's attorney then files the certificate of merit, which confirms that the attorney has consulted with a medical expert and that the plaintiff's action has merit.

Potential Defendants

Several types of health care professionals and, in a case can commit medical malpractice 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 very important to plaintiffs in medical malpractice cases, because it helps ensure there will be a financially responsible party to compensate an injured plaintiff.

In some situations, commonly involving attending physicians working in hospitals, health care providers are considered independent contractors rather than employees, which makes the doctrine of "respondeat superior" inapplicable. What this means is, if a doctor or other health care professional an independent contractor, and commits malpractice while treating a patient in a hospital, the hospital cannot be held liable for the doctor's negligence. However, the hospital can be held liable for its own negligence, for example, in granting attending privileges to an unlicensed or incompetent doctor.

Conclusion

In general, there are no guarantees of medical results. An unanticipated or unsuccessful result from medical treatment or surgery does not, in itself, mean that medical malpractice has been committed. Nonetheless, if you believe you may have been the victim of medical malpractice, you should meet with an experienced attorney as soon as possible to discuss the facts of your case and receive a professional evaluation of your situation.

Responsible Parties in Medical Malpractice Actions

Medical malpractice is not limited to medical doctors. It applies also to nurses, dentists, osteopaths, health care facilities, and others providing health care services, such as nursing homes. If you believe that you have been the victim of malpractice by any health care provider, do not delay in contacting an experienced medical malpractice attorney.

Hospitals

Hospitals are corporations that are either public or private entities. In the context of medical malpractice actions, hospitals can be held directly liable for their own negligence, and can also be held "vicariously" liable for the negligence of their employees. Vicarious liability means a party is held responsible not for its own negligence, but for the negligence of another.

Hospital Negligence

A hospital's medical staff will consist of licensed doctor and other licensed health care providers, such as nurses, doctor assistants, and nurse practitioners. In hiring its medical staff, a hospital must make reasonable inquiries into an applicant's education, training and licensing. If a hospital fails to make reasonable inquiries regarding a member of its medical staff, it might be held liable under the "corporate negligence" doctrine for negligent supervision or retention, if the staff member's negligent care injures a patient. A hospital might be held liable for its own negligence where, for example, it fails to investigate the credentials of an attending doctor before granting him/her privileges at the hospital, or where it allows a doctor whom it knew, or should have known, was incompetent, to treat patients at the hospital.

Hospitals are also required to ensure that there is a sufficient number of registered nurses on duty at all times to maintain quality patient care. A hospital that fails to do so may be held liable for injuries to patients resulting from a nursing shortage. Another area of potential liability arises when a hospital's employees fail to follow the orders of a patient's private attending physician. Conversely, if a hospital employee finds a private doctor treatment plan to be clearly contraindicated, but fails to make a reasonable inquiry of the doctor as to the treatment plan, the hospital could also be found liable.

Finally, hospitals may be held liable for failing to protect patients from harm, adequately perform clinical tests, keep accurate medical records, and properly admit and discharge patients. In the area of admissions, hospitals are generally required to treat seriously injured or ill people on an emergency basis, and the refusal to do so may result in hospital liability. Additionally, federal and state statutes prohibit hospitals from refusing to treat or admit people based on their race, color, religion or national origin, or on their inability to pay for treatment.

Vicarious Liability

When a hospital employee's malpractice injures a patient, the hospital itself may be held vicariously liable under the legal doctrine of "respondeat superior." Under this doctrine, 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 very important to plaintiffs in medical malpractice cases, because it helps ensure there will be a financially responsible party to compensate an injured plaintiff.

In some situations, health care providers such as doctor are considered independent contractors rather than hospital employees, and the doctrine of "respondeat superior" will not be applicable. What this means is, if a doctor or other health care professional is an independent contractor, and commits malpractice while treating a patient in a hospital, the hospital cannot be held liable for the doctor's negligence. However, the hospital can be held liable for its own negligence, for example, in granting attending privileges to an unlicensed or incompetent doctor.

Finally, in certain situations, a hospital may be vicariously or directly liable for the acts or omissions of contractors it retains to operate emergency rooms and outpatient facilities.

In some states, there are statutes that protect state-run health facilities. Throughout the country, there are hospitals that are teaching facilities and employ doctor who are actually considered employees of the state. These doctors, including residents and interns, are sometimes accorded sovereign immunity, which limits their liability by shortening the time period in which suit can be filed, and placing maximum limits on the amount of damages and attorneys' fees that can be recovered.

Pharmaceutical Companies

In some cases, a pharmaceutical manufacturer may be liable where a drug caused a patient injuries, but only if the manufacturer failed to warn doctor of the drug's potential side effects or dangers.

A pharmaceutical manufacturer's primary duty is to doctor . Thus, a manufacturer generally will not be liable for a patient's injuries, as long as it adequately informed the doctor of all risks associated with a particular drug. As to the ultimate consumer, a pharmaceutical company only owes a duty to ensure that the medication it manufactures will be reasonably safe when used as intended. To ensure a drug's safety, the manufacturer must research the drug's possible side effects and risks before putting it on the market. If the pharmaceutical manufacturer fails to adequately warn a doctor of a drug's dangers, however, the drug becomes what is known under product liability law as "unreasonably dangerous," and the manufacturer might be held liable for the failure to provide proper warnings.

In most cases, the prescribing doctor is considered a "learned intermediary," which means that because of his or her superior medical knowledge, and assuming he or she has been given adequate information from the manufacturer, he or she is in the best position to determine whether a particular drug or device is appropriate for a patient. Thus, the doctor has the primary duty of advising the patient of the risks and side effects of a medication or medical device he or she prescribes.

Conclusion

If a health care provider has injured you or someone you love as a result of negligent conduct, an experienced medical malpractice attorney can see you through the complicated legal maze of a medical malpractice lawsuit. Contact a medical malpractice attorney today.