A Medical Malpractice Primer for Patients

Medical malpractice kills 225,000 people every year, according to the Journal of the American Medical Association (JAMA).  In New York state hospitals alone, 1 percent of all patients are injured due to negligence, with a quarter of those patients dying from their injuries.  Despite such staggering statistics, fewer than one-half of 1 percent of the nation's doctors face any serious state sanctions each year.

Anyone can become the victim of medical malpractice.  Even procedures that seem simple on the surface can lead to devastating injuries if they are not done properly.  According to the JAMA, every year, medical malpractice leads to:

• 12,000  deaths from unnecessary surgery
• 7,000 deaths from medication errors in hospitals
• 20,000 deaths from other errors in hospitals
• 80,000 deaths from infections in hospitals
• 106,000 deaths from non-error, adverse effects of medication

Medical Malpractice occurs when a negligent act or omission by a doctor or other medical professional results in damage or harm to a patient.  This can include an error in diagnosis, treatment, or illness management.

There are several types of medical malpractice.   Generally, a delay or failure to diagnose a disease is considered medical malpractice if it has resulted in injury or disease progression above and beyond that which would have resulted from a timely diagnosis.  This can occur when a doctor or other healthcare professional dismisses the presenting symptoms as temporary, minor, or otherwise not worthy of treatment.  Such malpractice also includes erroneous diagnosis, or prescribing the wrong treatment for a correct diagnosis.  Finally, if a new or unproven treatment causes an injury, the doctor prescribing it could be liable if a more conventional treatment would have been successful.

Malpractice also occurs when a doctor or other healthcare provider fails to follow the established "standard of care".  All licensed healthcare professionals are expected possess a basic level of skill and expertise in diagnosing and treating patients in their specialty.  When a patient is injured because a medical professional did not follow the established standard of care, the victim may be entitled to compensation.

Malpractice also occurs in cases were a healthcare professional is guilty of "gross negligence" - instances were the practitioners conduct was so reckless or mistaken that even a layman without medical training would known it.    Examples of gross negligence include  amputating the wrong limb or leaving a surgical instrument inside a body cavity of the patient.

All patients have the right to receive information about their medical condition, treatment choices, risks associated with the treatments, and prognosis.  The information must be provided in a way that a patient can understand.   This concept is known as "informed consent".  If a patient has been deprived of the information needed to give informed consent to a non-emergency procedure, the patient may have a valid malpractice claim.

Finally, doctors and other practitioners who breech patient confidentiality might also be guilty of malpractice.  Patient confidentiality is required of doctors even after a patient leaves their care. Confidentiality covers all medical records, as well as communications between patient and doctor, and generally includes communications between the patient and other professional staff working with the doctor.

Medical malpractice laws are designed to protect patients' rights to pursue compensation if they are injured as a result of negligence. But because there is never a guarantees of medical results, bad outcomes  do not necessarily mean negligence occurred.  In order for a medical malpractice claim to be considered valid, several elements are needed.

To be successful, a plaintiff in a medical malpractice case must prove:

• A duty was owed - a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
• A duty was breached - the provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious errors.
• The breach caused an injury - The breach of duty was a proximate cause of the injury.
• Damages - Without damages (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent.

Anyone who believes they were injured as a result of medical malpractice should take steps to protect their legal rights.  It is a good idea to speak with lawyer right away, as most states have time limits on filing malpractice lawsuits.  Before meeting with an attorney, it is important to collect any documents you have relating the injury.   This would include all of your medical records from any hospital or doctor who treated you.  After meeting with you, and reviewing your records, an attorney will be able to tell you if you have a case for medical malpractice.