What is medical negligence?
Medical negligence occurs when a medical provider fails to exercise the kind of care and prudence that other providers in the same field of medicine provide. Medical negligence can occur in the form of recklessness, inattentiveness, or an omission. Common types of malpractice include misdiagnosis, failure to provide proper treatment of a patient’s ailment, administration of the wrong medication, and the failure to inform the patient of the risks associated with a treatment or with information about alternative treatments. Tort law governs medical negligence. To establish that a provider’s negligence was malpractice, a claimant must establish the following:
1. The healthcare provider owed a duty to the plaintiff;
2. The healthcare provider breached the duty;
3. The healthcare provider’s breach caused the injury; and
4. The patient suffered damages because of the defendant’s negligence.
Sometimes it is apparent that a medical provider’s actions were the cause of a patient’s injury. When this happens, a claimant can use the doctrine of res ipsa loquitur to establish negligence. Res ipsa loquitur means “the thing that speaks for itself.” When the injury itself presents a reasonable basis for the inference that the medical provider breached the duty of care, a claimant may use this doctrine to establish fault. The claimant must prove the following to establish medical negligence using res ipsa loquitur:
1. The type of injury would not usually occur in the absence of negligence;
2. The instrumentality that caused the injury was in the sole control of the defendant; and
3. The plaintiff’s conduct did not produce or contribute to the injury.
What is the “standard of care” for medical providers?
The “standard of care” for a medical provider is based on the kind of care and knowledge that a healthcare provider in the same field would exercise. Every person owes a duty to act as a reasonable and prudent person would, but a higher duty exists for healthcare providers. Medical providers have a special skill, and consequently, the law requires that they possess the same kind of knowledge and skill that a person in the same profession would exercise.
A court will likely find that a provider failed to meet the standard of care when he or she was unable to exercise the same kind of care as others in the same profession. A general practitioner is expected to act as a general practitioner would in the same geographic area and a specialist must possess the skills that a member of the specialty normally would have. A court will use medical experts in a particular field or experts with expertise with a procedure to establish the standard of care in medical negligence cases.
Who is liable for medical negligence?
Any type of medical provider, such as a doctor, nurse, or technician, can be liable for medical negligence. In addition to a medical provider, a hospital is sometimes liable under the doctrine of vicarious liability. Most of the time, another person is not legally responsible for the actions of others. However, sometimes an employer is liable for an employee’s actions when the employee’s actions occur during the course of employment. This means that even if the employer did not directly cause the injury, liability may attach when the employee was performing a job function. Consequently, a hospital may be liable for the actions of the medical providers it employs. In some circumstances, a court will hold a hospital liable for the actions of a healthcare provider it does not employ if the hospital led the patient to believe that the hospital employed the provider. This may occur in a situation where the medical provider was a contractor.
What is informed consent?
A healthcare provider must provide a patient with information about risks, benefits, and alternatives to a medical procedure or a type of medical treatment. This is called “informed consent.” Informed consent is unnecessary in the following situations: in an emergency when the patient is unconscious or when a family member is unavailable to give consent. In these situations, a medical provider may perform a procedure without receiving consent from the patient or family members. The failure to give informed consent in other situations may amount to medical malpractice.
What kind of compensation is available for medical negligence?
Every state has regulations that determine the type of compensation a claimant may recover. Most states will allow a plaintiff to receive damages for past, present, and future medical treatment, lost wages, and pain and suffering. A court will determine noneconomic damages, such as pain and suffering, by evaluating the impact of the injury on the claimant’s life. The embarrassment caused by the injury, the permanency of the injury, and the emotional distress are factors that determine the damage award.
Can a third party recover compensation for medical negligence under the doctrine of “subrogation”?
An insurance company or another party that pays for an injured person’s medical treatment can recover compensation from the party responsible for the medical negligence. In effect, the third party inherits the rights of the injured claimant. Consequently, the third party can sue the healthcare provider and recover damages for the claimant’s injuries.
What is the statute of limitations for medical negligence?
A statute of limitations governs how long a claimant has to file a legal claim for injuries caused by a defendant. As with all legal claims, every state has a statute of limitations for medical negligence. In general, a claimant has one to seven years to bring a lawsuit. The statute of limitations will typically begin to run when the injury occurred or when the claimant learned of the medical malpractice.
Author: Chris N. Jackson
Source: ezinearticles.com
admin