You may be reading this because you or a loved one has suffered an injury due to a mistake by a healthcare professional. We understand this can be a very difficult situation for many reasons: the uncertainty of what went wrong and why, the pain and suffering caused by the injury, or the medical bills piling up. Often, the medical professionals treating you or your loved one provide vague explanations as to what happened, leaving you and your family trying to understand what happened and whether the outcome was due to a medical error.
In some cases, the injuries that resulted following medical care were either unpreventable or known complications. But in other cases, the patient’s injuries could be due to a preventable medical error that resulted from negligence. When this happens, you or your loved one may have a claim for medical malpractice (also known as medical negligence).
In this post, we will explain the basics of what constitutes medical malpractice and answer some common questions.
What is a Medical Malpractice Claim?
Laws about the responsibility of medical providers toward their patients date back thousands of years, at least as far back as the Code of Hammurabi in 2030 B.C. This tradition continued with Roman law, and into English law, as far back as the 12th century. For thousands of years, societies have recognized the vulnerability of the patient with respect to the doctor, and as a result, have placed special responsibilities on the doctor to behave reasonably.
Based on this universal principle, most states require that healthcare professionals comply with the “standard of care,” and any deviation from the standard of care that causes an injury may be a basis for a medical malpractice claim.
The definition of the “standard of care” may vary by state, but generally, it requires the healthcare provider to act reasonably under the circumstances. If the medical professional fails to do that, they have deviated from or “breached” the standard of care. In that situation, a patient or the patient’s loved ones may have a claim for medical malpractice when that deviation from the standard of care causes injury or harm.
Although people often think only of doctors when they hear medical malpractice, there are many healthcare providers who may be responsible for an injury. Examples of medical professionals who can commit medical malpractice include:
- Primary Care Physicians
- OB/GYN Physicians
- Certified Nurse Midwives
- Nurse Practitioners
- Physician Assistants
- Emergency Medicine Physicians
- Respiratory Therapists
- Numerous other medical specialists
Likewise, medical malpractice can be committed by non-medical professionals in a medical setting. For example, errors in charting, failures to communicate appropriately, or providing defective medical equipment can be due to staff persons who may not be medical professionals but, given their positions, are responsible for administering or recording medical orders or decisions. These types of errors can occur in all settings, including:
- Urgent care centers
- Doctors’ offices
How do you prove medical negligence?
As noted above, when a healthcare provider breaches the standard of care and causes injury, that professional has committed medical malpractice or medical negligence. To prove medical negligence, an injured person must prove that:
- The healthcare provider owed a professional duty to the patient;
- The healthcare provider breached that duty (a breach of the standard of care);
- The patient’s injury was caused by that healthcare provider’s breach; and
- The patient suffered damages as a result of that breach.
To establish these elements, the injured party must normally present expert testimony. Sometimes, multiple experts are needed. The expert or experts must identify the applicable standard of care, how the medical professional deviated from that standard in treating the patient, and how that deviation caused injury.
In many states, including Delaware, even before a claim is filed, the injured party needs to retain one or more qualified medical experts who can support these elements. Thus, to pursue a medical negligence claim successfully, it is critical to hire attorneys who understand the case and know how to select and work with competent and qualified experts.
What professional duty is owed to a patient?
There must be an appropriate relationship between the patient and the healthcare provider to establish a legal duty of care in the first instance. The American Medical Association explains that a doctor-patient relationship exists when “a physician serves a patient’s medical needs. Generally, the relationship is entered into by mutual consent between physician and patient (or surrogate).” In some circumstances, like an emergency, a doctor-patient relationship may be created without the patient’s explicit consent.
Other healthcare professionals who treat patients in the medical context likewise owe their patients a duty of care. If such a relationship exists, the medical professional owes his or her patients the duty to treat them in accordance with the applicable standard of care.
What is the standard of care?
As discussed above, many states define the standard of care differently. Generally, however, most states agree that the standard of care requires the healthcare professional to act as a reasonably competent and skilled healthcare professional under the circumstances.
While this definition seems easy to meet in the abstract, a healthcare provider’s decisions in specific circumstances may be unreasonable when the healthcare provider failed to meet that standard. Circumstances that may impact the applicable standard of care may include accepted practices of doctors in the area, medical advances that require the use of newer techniques, the type of equipment and facilities available at the time, the patient’s medical conditions and risk factors, and any exigent circumstances.
How do you know when a provider breached the standard of care?
Sometimes, whether a medical professional breached the standard of care may be easy to identify. For example, if a medical professional removes the wrong body part, it is clear that the professional acted unreasonably and breached the standard of care. However, in other cases, it is not so obvious. In those situations, a medical expert needs to review the relevant facts of the case and give an opinion that the medical professional at issue breached the standard of care. Because of the medical complexity of these cases, factors and issues, the law generally requires medical experts to practice in the same or similar specialty as the medical professional whose care is at issue.
How do you show that a patient’s injury was caused by the provider’s breach of the standard of care?
Breaching the standard of care is never enough to establish medical malpractice. Rather, the expert offering testimony must go further and opine that the medical professional’s breach of the standard of care caused the harm at issue. Thus, even where there is a clear error by a medical professional, a patient may not be able to pursue a claim for medical malpractice if the patient’s harm was not due to the professional’s misconduct. .
There are different standards to establish that the medical professional’s breach of the standard of care caused the harm at issue. Some courts use the “but for” test, which requires the patient to demonstrate that, “but for” the medical professional’s actions, the injury would not have occured. Other courts use the “significant factor” test, which requires the medical professional’s conduct to have been a “significant factor” in bringing about, or causing, the injury at issue. In most cases, the law requires a qualified medical expert to opine on whether the medical professional’s breach of the standard of care caused an injury.
Many times, the determination of whether the healthcare professional’s misconduct caused the harm at issue is tricky and can determine whether there is a viable claim for medical malpractice. For example, consider a hypothetical case where a surgeon left an instrument inside a patient’s body by mistake. Most people would agree that doing so was unreasonable and, therefore, a breach of the applicable standard of care. However, consider further that, when the patient was recovering from surgery, the patient fell at the hospital and broke his or her leg. It would be difficult to prove, in such a case, that the patient injured their leg because of the surgeon’s negligence (here, leaving an instrument inside the patient’s body).
A strong argument could be made that the surgeon’s mistake did not cause the patient to fall or that the patient would have fallen even if the surgeon had not made this mistake. Thus, in this hypothetical situation, if the surgeon’s negligence did not cause the patient’s harm, there is no claim for medical malpractice. Proving causation can be complex and difficult which is another reason to retain an experienced medical malpractice attorney who understands how to navigate these issues.
What kind of damages must be suffered to make a viable claim?
If the patient successfully proves that the doctor owed him or her a duty, breached that duty, and that the breach caused an injury, the patient still has one final element to prove: that he or she suffered actual harm or injury as a result of the standard of care breach. Patients may be able to receive compensation for many types of injuries and harm, including:
- Past and future medical bills
- Physical pain and/or disfigurement
- Mental anguish
- Loss of past earnings and future earning capacity
- Loss of enjoyment of life
- Loss of a loved one’s companionship (sometimes called a “loss of consortium”)
Some states have a cap on damages for pain and suffering in medical malpractice cases. Delaware, however, does not.
In some cases, a healthcare provider’s misconduct is so egregious that the court may permit something above and beyond the typical damages. In that situation, a patient can pursue something called punitive damages, which are damages meant to punish the doctor for recklessly or intentionally causing the patient harm. These situations are rare, but depending on the facts of the case, they can occur. An experienced attorney will be able to evaluate the facts and assess whether punitive damages are appropriate.
What should I do next?
If you or a loved one has been injured and you believe it was due to medical negligence, you should contact a reputable, experienced attorney as soon as possible. The difference between a successful and unsuccessful case may hinge on the quality of the attorney you hire. You should consider the attorney’s experience handling these cases and whether the attorney is willing to go to trial for the compensation you deserve. Medical malpractice lawyers should also offer a free consultation to discuss the details of your case with you and to outline the next steps. Your attorney will walk you through every step of making a claim.
Sometimes, after a claim is filed as a lawsuit, the injured party and the healthcare providers are able to resolve their matter before trial. If, however, the defendant healthcare providers refuse to pay a fair amount, our team will go to trial to receive fair compensation. The attorneys at Morris James have tried many cases to verdict and know how to fight for their client’s right to fair compensation.
If you are injured and think it might be due to medical malpractice, we may be able to help. Our attorneys at Morris James are available to talk to you about your rights and the options that you have at this difficult time. Contact us online or call into one of our local Morris James offices in Delaware to find out more.