Medical malpractice is a legal cause of action that occurs when a medical or health care professional, negligently, deviates from standards in their profession, thereby causing injury or even death to a patient. The negligence might arise from errors in diagnosis, treatment, aftercare, or health management.[1]
- What is the standard of care?
Standard of Care refers to “recognized as acceptable and appropriate by reasonably prudent similar physicians.”[2]
The concept of “Medical Malpractice” associates most of the crisis to its lack of availability of specialists who treat high-risk patients. For the same, numerous laws, enactments have been ratified to address various aspects of the malpractice issue. We will be discussing a few in this article.
Medical malpractice law in this country traditionally has been under the authority of the states, not the federal government. And, unlike many other areas of the law, the framework and legal rules governing malpractice actions were, prior to the last thirty years, largely established through decisions in lawsuits in state courts rather than through statutes enacted by state legislatures. Legal rules established by the courts generally are referred to as “common law.” Because the legal precedents that established the case law in one state have no weight in any other state, the rules for handling medical malpractice cases varied from state to state, although many of the principles were similar.[3]
Legal Process Step by Step:
- In a medical malpractice lawsuit, the Plaintiff must show that they were actually under the care of the medical practitioner or the establishment they are suing. The general notion is that health care professionals know what they are doing and are responsible to be reasonably careful.
- There has to be a physician-patient relationship established. Since health care professionals owe a duty to their patients only and not to the general public at large.
- Thirdly, it must be shown that the physician did not practice appropriate medical care that met with the standard duty of care. Moreover, it is important to show the medical care so provided to the plaintiff is what cause the injury in the first place.
- The final step is to determine damages: In a medical malpractice case is establishing how much monetary compensation can be availed by the Plaintiff. The monetary aspect of lawsuits is also known as “damages”. Determining damages can be complicated and various factors are taken into consideration:
- Future medical expenses,
- The fee already paid to the health care facility or the said medical professional, etc.,
Laws:
- 22 U.S. Code § 2702 – Malpractice protection,
- 51 U.S. Code 20137.Malpractice and negligence suits against the United States,
- Title: 46 – SHIPPING, Subtitle III – Maritime Liability, Chapter 305 – EXONERATION AND LIMITATION OF LIABILITY, Sec. 30510 – Vicarious liability for medical malpractice with regard to the crew,[4]
- United States Code, 2006 Edition, Supplement 4, Title 10 – ARMED FORCES: Sec. 1089 – Defense of certain suits arising out of medical malpractice.[5]
- Statutes of Limitations: Another area where states have passed new laws relates to the length of time that patients have to file a malpractice suit after the event that gives rise to the action. This period is called the “statute of limitations.” At the same time, some injuries do not manifest themselves immediately, so statutes of limitations often have special provisions that extend the period for bringing a lawsuit for some period after the injury should reasonably have been discovered.
- Refer Florida Statutes § 768.76. 15 Tennessee Code § 29- 26-119 in reference to the above statement.
- Nebraska Revised Statutes §25.222,
- South Carolina Code § 38-79-420.
It was held in the case of Columbia Medical Center of Las Colinas v Bush, 122 S.W. 3d 835 (Tex. 2003), “following orders” may not protect nurses and other non-physicians from liability when committing negligent acts. Relying on vicarious liability or direct corporate negligence, claims may also be brought against hospitals, clinics, managed care organizations, or medical corporations for the mistakes of their employees and contractors.[6]
Some believe that there aren’t enough laws in regard to medical malpractice. Whilst there have also been various cases in regard to false claims in suing the said doctors. The excessive litigation, unreasonably high settlements, and what not. Make the most of your claim. Compensation that you deserve. Contact our attorneys at Layman Litigation now!
[1] https://en.wikipedia.org/wiki/Medical_malpractice#cite_note-1 [2] https://www.physiciansweekly.com/proving-a-medical-malpractice-case-i-proving-negligence-part-i [3] https://www.kff.org/wp-content/uploads/2013/01/medical-malpractice-law-in-the-united-states-report.pdf [4] https://www.govinfo.gov/app/details/USCODE-2010-title46/USCODE-2010-title46-subtitleIII-chap305-sec30510 [5] https://www.govinfo.gov/app/details/USCODE-2010-title10/USCODE-2010-title10-subtitleA-partII-chap55-sec1089 [6] https://en.wikipedia.org/wiki/Medical_malpractice_in_the_United_States
