Frequently Asked Questions

MEDICAL NEGLIGENCE/MALPRACTICE ISSUES

What is negligence?

Negligence is the failure to exercise the ordinary care which a reasonable person would use in or similar circumstances. It is the failure to do or not to do that which ought to be done to avoid injury or harm. A negligent act may or may not cause measurable but if it does cause such harm then redress for the injury may be sought in a court of law.

What is medical negligence or malpractice?

This is negligence elevated to a higher degree of responsibility predicated on a greater level of education and training. Now the measure of care is assessed against what a medical or health care practitioner with the same or similar training would do in the same or similar circumstances. This is established by standards of care within the various specialties of medicine. If the level of care falls below the standard of care and causes an injury then the negligence is actionable in a court of law. The breach of the standard of care must be proven by expert testimony by an expert practitioner with the same or similar training in the specialty of the treating practitioner .

What is the standard of care?

Each specialty in medicine and other health care disciplines has a continually evolving set of guidelines for the proper care and treatment of patients with regard to any particular specialty of medicine. It becomes known as the care rendered by a reasonable and careful practitioner in that specialty with the same or similar training as the treating specialists. Experts are called upon by the injured plaintiff as well as by the defendant practitioner or health care facility to establish the standard of care. It is the function of the experts to establish the standards of care and to then establish the breach or adherence to those standards by the parties to the law suit.

Each medical specialty whether physician, nurse, other health care provider or facility will have these standard guidelines. Many of the guidelines are not written down because as medical care advances and changes the guidelines move along with the specialty to new frontiers of quality of care. Thus, standard of care must be measured against the standards in effect at the time treatment was rendered—not the standard which might be in existence (and very different) at the time a suit comes to trial.

Is medical negligence (malpractice) always actionable?

Theoretically the answer to this question is yes. As a matter of practicality the answer is no. Many injuries caused by negligence have no measurable after effects or are correctable by simple inexpensive interventions. Under such circumstances it becomes economically prohibitive to pursue a suit if there is no demonstrable or prolonged injury. The gathering of evidence and the deposition of expert witnesses is a very costly and time consuming endeavor which ordinarily limits the filing of a law suit involving a minor or inconsequential injury.

If you suspect medical negligence what do you do?

First and foremost get a copy of the medical records (all of them). These records will become the most crucial piece(s) of evidence. Also if you get a copy of the records it is unlikely that any portion of those records will be changed or corrected without appropriate notations. Submit a written request for your records and ask for a complete copy. The health care provider may levy a copying charge but it is a small price to pay for getting those records into your hands intact.

Remember that it is incumbent on the plaintiff to prove that injury resulted because of treatment that fell below the standard of care. Therefore, you must consult an attorney who is familiar with the handling of malpractice cases. The attorney will know how to proceed and obtain experts to review your records and weigh the circumstances under which the possible negligence occurred. There well be experts for your side of the case and also for the defendant(s) side of the case. These experts well have a substantial bearing as to the outcome of your claim of negligence. This is why the evaluation should take place as soon as possible.

Should you approach your treating physician even if he is the one who has committed the possible malpractice?

Emphatically NO! not until you have copies of all the treatment records in your hands. This ensures that you have a true and credible record in your possession, Then discussion with the health care provider is up to you but you still must get an attorney as soon as possible.

More information and discussion will be added to this site from time to time as timely topics come to mind and are of current interest. There are many sites on the internet which discuss and answer questions regarding medical conditions, their treatment and the potential problems associated with the therapy.