What is Medical Malpractice? I am often asked that question by potential clients. Rather than just reciting the legal theory, here are some FAQ that explain, in practical terms, exactly what is medical malpractice:
Q. I had a bad result from a medical procedure. Exactly what is medical malpractice? Can I sue my doctor?
A. Possibly. But you can’t sue JUST because you had a bad outcome.Medicine is not an exact science. Even when a medical professional complies with accepted medical practice, a patient may suffer a bad outcome.
Q. So what else would I have to prove to have a valid claim?
A. In laymen’s terms, that your doctor “messed up.” In legal terms, medical malpractice takes place when a medical professional departs from the “standard of care” in his specialty. In other words, medical malpractice means that your doctor failed to do what other physicians in his specialty and area normally do in the same situation.
You also must prove that the doctor’s malpractice injured you.
Q. I visited my doctor and told him about certain symptoms that I had. She didn’t order any tests. Six months later, I was diagnosed by another doctor with a very serious illness. The second doctor said that the illness has been there for at least a year. Can I sue the first doctor for medical malpractice?
A. Yes, if you can prove that the standard of care required that the first doctor order tests that would have diagnosed your problem. However, you must also show that your outcome would have been better had the diagnosis been made in time by the first doctor. In some cases, for example, a disease is such that, no matter when a doctor diagnoses it, it will cause the same harm. You couldn’t sue the first doctor in such a case.
INFORMED CONSENT CLAIMS
Q. My doctor performed a procedure on me without my consent. Can I sue him for medical malpractice?
A. Quite possibly. Medical malpractice also takes place when a physician performs a procedure without obtaining your informed consent. “Informed consent” means that you agree to a treatment, after being completely informed of the risks and benefits.
However, for you to have a valid claim, a risk that the doctor didn’t tell you about must actually have harmed you. Further, you must prove that a fully-informed, reasonable patient under the same circumstances wouldn’t have consented to the treatment.
Q. My doctor failed to perform a procedure that would have helped me. She never even told me about the procedure. Can I sue her?
Yes, under the right conditions. Medical malpractice takes place if a physician fails to perform a procedure without getting your informed consent. Accordingly, to sue the doctor, you must prove that a fully-informed, reasonable patient would have wanted the procedure performed. Further, as in any malpractice case, you also have to prove that the doctor’s inaction injured you.
PROVING WHAT IS MEDICAL MALPRACTICE
Q.How do I go about proving all these things that I need to show in order to have a valid medical malpractice claim?
A. A good start is to go to a different doctor and get a second opinion about the first doctor’s treatment. Often, the second doctor will inform you how he would have handled things differently.
However, the reality is that many doctors are reluctant to criticize other doctors. If you can’t get a straight answer from a second (or third) doctor, call a qualified medical malpractice lawyer. He may be able to arrange for a qualified doctor to look into the matter further.
Q. So all I have to do is read these FAQ, and then I will know exactly what is medical malpractice, correct?
A. No. These FAQ are just a summary of parts of a complex area of law. If you have reason to believe that your doctor made a mistake that injured you, contact an experienced medical malpractice attorney immediately. There are deadlines to bring claims. If you miss a deadline, you will lose your right to recover any compensation.