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Medical Malpractice

What is malpractice?

Malpractice may arise from a professional's misconduct or failure to use adequate levels of care, skill or diligence in the performance of the professional's duties that causes harm to another. Malpractice typically occurs if a professional fails to exercise his or her professional skills in an assignment he or she has accepted at the standard of care, skill and learning applied circumstances by the average prudent reputable member of the profession in the give in the "community". Comparison of performance is based upon the standard of care for the professional in the "community" - what other professionals in the same field do for their clients who are located in the same geographic area.

In order for malpractice to be actionable, injury, loss or damage must be suffered by the person who retained the professional's services, or those otherwise entitled to benefit from or rely upon the professionals services.

What are some specifics with respect to malpractice?

Some states have laws which significantly limit the amount of damages that an injured person may recover as a result of medical malpractice. Many states also have shortened the applicable statute of limitations. Further, some states have established mandatory arbitration of medical malpractice disputes as a pre-requisite to a lawsuit for medical malpractice.

To prevail in a medical malpractice lawsuit, you must prove that your injury, loss or damage resulted from the doctor's deviation or failure to conform with the applicable standard of care for your condition in your community.

Is misdiagnosis malpractice?

Not necessary. Medicine is not an exact science; doctors are not required to be right every time they make a diagnosis. It is a fact that a misdiagnosis can be arrived at through standard tests, even when the tests are performed accurately or evaluated by a skilled doctor with the utmost care.

A misdiagnosis may be malpractice if the doctor fails to get a medical history, order the appropriate test for the illness, or recognize the symptoms of the illness. And yet, there is no basis for a malpractice claim if there is no injury, loss or damage as a result of the misdiagnosis and consequent treatment, on the theory that you are no worse off than you were before.

Who can commit malpractice?

In theory, any professional who renders services upon which you and others rely upon can commit malpractice. Often, the professional is licensed or regulated by the state.

Accountants, attorneys, actuaries, chiropractors, dentists, physicians, psychologists and therapists are typically the persons named in a "malpractice action". When others engage in malpractice, the action usually not specifically called malpractice, but negligence. In actual practice, only those who hold themselves out as having special skills or abilities are held accountable in malpractice litigation.

Will I need an expert to prove malpractice has occurred?

Almost always, Yes. In order to establish malpractice, it will be necessary to prove what the standard of care in the community for that professional for handling a similar matter is. Lay people do not have the necessary education, experience or skills to act as a professional -- or to gauge what a professional is supposed to do or refrain from doing in a particular situation.

In order to determine what should or should not have been done in your particular circumstances, someone with the requisite education, experience and skill would be needed to establish what the standard of the community is. Many malpractice lawsuits are won/lost based upon the effectiveness of the expert.

Experts should always be hired by your attorney, to maintain confidentiality and retain your rights.

How do I recover damages sustained due to malpractice?

The first inquiries help determine whether malpractice has been committed. Malpractice does not depend on "how nice" the professional was. What matters is what the professional did or failed to do? Would a similar professional in the community have done the same act or omission? Is there an injury, loss or damage as a result of the act or omission? Depending on your response to these (and similar) basic inquiries, there may have been actionable malpractice.

You yourself are rarely in a position to know whether or not there was malpractice, and the professional who performed the service may be unwilling to tell you s/he's at fault. (He may not even know s/he's at fault.) In fact often an attorney has to hire an expert or consultant to help assess whether or not there was malpractice. Unless the facts are very clear, you generally would be asked to pay for the cost of that initial assessment.

If a procedure was not successful, is that malpractice?

Medical malpractice does not occur every time medical treatment is not successful. Doctors are not guarantors of the services which they render. A doctor is, however, required to have the necessary knowledge and experience to perform the services in question. Further, doctors must exercise the skill and care that others in the community use when dealing with similar treatments.

Is a licensed doctor protected from a malpractice claim when he or she provides emergency medical treatment at an accident site?

Yes.

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