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Common Causes of Malpractice Litigation

Malpractice litigation involves a complex process. The degree to which the error constitutes malpractice depends on whether the patient is able to establish four legal elements: a professional duty and breach of this duty; harm due to the breach and tangible damages.

Plaintiffs must also prove the elements using evidence such as expert testimony and depositions.

Incorrect diagnosis and inability to diagnose

Failure to diagnose an injury or illness accurately can cause serious complications, or death. A lot of medical malpractice cases involve mistakes in diagnosis. To establish negligence, a patient or their lawyer must prove that a skilled doctor in similar circumstances would not have misdiagnosed the condition.

Not every misdiagnosis is malpractice, however. Even the most experienced and highly trained doctors make mistakes, and an allegation of malpractice needs to be supported by other factors like breach, proximate causality and actual injury. If a doctor does not sterilize his equipment prior to giving anesthesia, and the patient is infected due to this, the doctor may be found to be negligent.

In most instances, lawsuits claiming malpractice will be filed in the state trial court in which the alleged error occurred. Federal courts may be able to hear cases in certain situations. A case may be brought before a federal court in specific circumstances. For instance it could involve the issue of the statute of limitations or if the parties are of different citizenships. Certain disputes are settled via binding voluntary arbitration. This is a less formal procedure with professional decision makers. It is designed to reduce costs, speed up legal proceedings, and eliminate the risk of overly generous juries. Arbitration is not always available in cases of misconduct.

Dosage of a drug that is incorrect

Medication errors are one of the most frequent causes of medical malpractice lawsuits. These errors are caused by a physician submitting prescriptions in the wrong format, or giving the patient the incorrect dosage. These errors are often preventable. According to the circumstances an individual pharmacy, hospital or other health care provider could be held responsible for the harm caused by patients who were given the wrong dose of a medication.

A doctor could prescribe the incorrect medication to a patient as a result of an inaccurate diagnosis or simply because he/she misreads the prescription. A health professional could also administer the wrong dose due to an interruption in communication for example, when a nurse reads a doctor's handwritten script incorrectly or the pharmacist makes an error in filling the prescription. In other cases, a physician might delay the proper medication to the patient, which could result in their condition becoming worse.

A victim must prove, to be successful in a malpractice claim, that the medical professional violated their standard of practice and that their injuries were directly attributed to the negligence. This requires medical expert testimony. Moreover, a medical malpractice case must demonstrate the extent of the victim's injuries and the damage they sustained as a result of the negligence. This includes the costs of treatment for the victim as well as any lost wages. The more the loss of the claim, the greater the value of the claim.

The wrong procedure

This kind of situation is not unusual. It might seem unattainable for medical professionals to carry out the incorrect procedure on patients but it does happen. A surgeon who commits this mistake could be held accountable for negligence. A patient who is injured because of a surgical error may be held responsible for any errors that occured during the procedure.

A health professional accused of malpractice has to prove that a patient was injured by the specific act or inability to take action. To prove this the legal counsel of the patient must show that: (1) the doctor was under an obligation to provide care or treatment; (2) that the doctor breached this duty; (3) that there is a direct causal relationship between the breach and the injury and (4) that the injury causes damages which the legal system has the power to address.

A breach of duty of care has no meaning unless it results in injury. This is the reason why medical malpractice attorney cases are usually founded on the legal doctrine "res ipsa locquitur," which states that certain injuries are so obvious that they can only be explained through negligence.

Depending on the facts of the situation, the plaintiff (the patient or their legally appointed representative) or their attorney could make the claim in a state or federal court. The majority of malpractice cases are filed in state court, but under limited circumstances, a medical malpractice lawsuit can be brought in federal district court.

Wrong Surgery

Wrong-site surgery is a rare mistake, but it could be considered medical malpractice if the procedure is performed on the wrong part of the body. This type of error is usually the result of miscommunications between the surgical team, or by production pressures that result in surgeons having several surgeries to perform at the same time. In these cases the surgeon is not solely responsible for a wrong-site operation because of the legal principle of "res ipsa locquitur", which states that the result is a matter of fact and cannot be blamed on negligence.

When a patient is injured during surgery that is performed on the wrong site the patient may require additional procedures to correct problems caused by the surgical mistake. Patients and their families are left with expensive medical bills. These costs should be considered when calculating the financial impact of medical malpractice lawsuits.

Surgeons are usually held accountable for surgical errors since they are the ones who are responsible for making preparations for the operation as well as double-checking the patient's charts and medical records, communicating effectively with other members of the medical team and making sure that the incision has been done at the correct place. However, in certain instances hospitals or anesthesiologists may also be held responsible. Medical malpractice claims are generally filed in state courts, but in certain situations they may be transferred to federal courts.