Medical malpractice is the negligence by act or omission of a health care provider where the treatment falls below the accepted standard of practice in the medical community and causes injury or death to the patient. Medical professionals often obtain professional liability insurance to offset the risk of lawsuits based on medical malpractice.
The Center for Disease Control indicates that more than 75,000 patients die each year from infections in care settings alone. Thousands of malpractice suits are brought against doctors each year. There are two main parties in a medical malpractice action – the plaintiff and the defendant. The plaintiff is or was the patient, or is a legally designated party acting on behalf of the patient. The defendant is the health care provider. A health care provider includes any medical care provider to include dentists, nurses, and therapists.
To prevail the Plaintiff must establish that:
- A duty was owed: a legal duty exists whenever a hospital or health care provider provides care or treatment
- The duty was breached: the provider failed to conform to the relevant standard of care
- The breach caused an injury: The breach was the proximate cause of the injury
- Harm: harm can be physical, financial and/or emotional
Like other tort cases, the plaintiff or their attorney files a lawsuit. The parties are then required to share information through the discovery process. If both parties agree the case can be settled without a trial. If the parties cannot agree, the case will go to trial. The plaintiff has the burden of proof to establish all the elements by a preponderance of evidence. At trial, both parties will usually present experts to testify as to the standard of care required. The judge or jury must weigh all the evidence and determine which side is the most credible. Consult with an experienced attorney if you think that you have been seriously injured by a medical professional.