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The following article was published in our article directory on February 23, 2015.
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Four Necessary Things that a Patient Must Prove Under Medical Malpractice

Article Category: Advice

Author Name: Injury Ninja

Definition

Medical malpractice is a branch of tort law that deals with the liability of doctors and other treatment providers when they cause harm to a patient by rendering services below the standards established by the medical community. Simply put, it deals with the liability of medical personnel when a patient suffers a personal injury because of the performance of services that are below the standard of care required from medical practitioners.

Medical Personnel

It is essential that before a claim for damages due to medical malpractice can be made, the person made liable must be a part of medical personnel. The U.S Code under Section 1089(a), substantially provides that medical personnel include "a physician, nurse, dentist, pharmacist, or paramedical or other supporting personnel, including nursing assistants, dental and medical technicians, and therapists."

Standard of Care

Whether medical personnel committed an inexcusable lack of precaution in the treatment of his patient is to be determined according to the standard of care observed by other members of the profession in good standing under similar circumstances. The general rule is that he must use at least the same level of care that any reasonable competent member of the community would use to treat a condition under the same circumstances. Consequently, cases decided by courts provide that a treatment below this standard of care is sufficient to cause medical malpractice.

Elements

Not every "medical malpractice" can be pursued in court. To be legally instituted, the offended party, usually the patient, must prove four things:

1. Professional duty owed to the patient

There must be a legal duty that exists towards the patient. The physician is under a duty to exercise that degree of care, skill, and diligence that medical personnel ordinarily possess and exercise in like cases. Essentially, there must be a physician-patient relationship existing between the parties. Such relationship is created when the professional services of a physician are rendered to and accepted by another for purposes of medical or surgical treatment.

2. Breach of the duty

There must be a breach of this duty, and this happens when a physician fails to exercise the standard of care required by his profession. To establish breach of duty, expert witness testimony is important because the concept of standard of care depends on a case to case basis and because courts do not understand medical concepts.

3. Injury caused by the breach

It is essential that the breach of duty must cause injury. Consequently, even if the physician failed to exercise the standard of care required, he will not be liable for medical malpractice if such act did not cause an injury to the patient. To prove this element, the patient must show a direct relationship between the breach of duty and the injury suffered.

4. Damages incurred

Damages, as used in medical malpractice, refer to the amount of money used by the patient to recover from the injury suffered. Damages include expenses for medication.

Conclusion

Though some acts may appear to constitute malpractice, not all of these acts are usually sufficient to make a physician legally liable. Medical malpractice must involve the four elements mentioned; otherwise, any lawsuit instituted against medical personnel will not prosper, and liability will not be imputed to them.

Disclaimer: This is not legal advice and we are not attorneys and should not be used as legal advice. We can or may help find legal advice for you. The contents of this curated website have been prepared by Injury Ninja for informational purposes only. As this is a compilation of outside news sources, we do not control the opinions or content being created for this site, we are not paid to include any of these sites. If you believe we should include other sources, please feel free to contact Injury Ninja. We welcome all suggestions. None of this information is intended as either legal or medical advice or opinions. While Injury Ninja maintains joint responsibility; all cases are referred to other attorneys, medical professionals or financial professionals for principal responsibility. No attorney/client relationship is established with use of this website. Sending or receiving information through this site, posting to our blogs/news site does not establish a client relationship. A client relationship is established only by an express and written agreement with an outside attorney, medical staff, or finance professional.

Keywords: bad drugs, personal injury, birth injuries, xarelto lawsuits, car crash, mesothelioma, asbestos, pharmaceuticals, medical malpractice

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