When we seek medical care for an illness or injury, we expect that our medical doctors and other professionals will provide us with the best care possible, treating our condition and preventing further harm.  In most cases, our medical professionals do just that.  Unfortunately, it is not uncommon for a person to suffer harm at the hands of a medical professional or hospital.  The National Academy Institute of Medicine has reported that each year more patients die from medical errors than from automobile accidents (43,458), breast cancer (42,297) and HIV/AIDS (16,516).

Perhaps even more alarming, a Harvard Medical School study determined that over five percent (5%) of all hospital patients were injured from medical malpractice.

More Medical Negligence Statistics
A 2003 study published in the Journal of the American Medical Association found that medical negligence and errors cause up to 98,000 deaths each year.  Another study by HealthGrades found that medical error was responsible for 195,000 preventable deaths annually.  Furthermore, thousands upon thousands more Americans are seriously injured due to medical negligence every year.  The incidence of medical negligence is so great in our country that many experts consider it an epidemic. 

Please read on to learn about medical negligence, the types of medical negligence that can occur, what to do if you have experienced harm caused by medical negligence, and more about medical malpractice lawsuits and your legal rights. 

What is Medical Negligence? 

Medical negligence, like medical malpractice, occurs when a medical professional makes an omission or fails to act in such a way that 1) deviates from accepted medical standards of practice and 2) causes injury or death to the patient.  Note that medical negligence does not necessarily have to involve a wrongful act committed on the part of a medical professional but, rather, occurs due to a failure to act or perform their duties to the acceptable standards of care set forth in their field. 
Medical negligence can be committed by any member(s) of the medical community, including hospitals, clinics, doctors, surgeons, anesthesiologists, pharmacists, dentists, nurses, psychiatrists, psychologists, therapists, nursing home staff, alternative health practitioners, medical para-professionals, and more. 

Types of Medical Negligence

Many types of medical malpractice can occur in a hospital or other medical care setting.  The most common types of medical negligence include: 

• Failure to diagnose, which may involve failure to order the proper tests, failure to properly evaluate or follow up on medical tests, failure to adequately examine a patient, failure to adequately assess a patient’s symptoms, etc. 

• Misdiagnosis of a disease or other medical condition—medical malpractice studies indicate that approximately one-third of medical negligence lawsuits are filed because of injuries or death caused by misdiagnosis (see cancer misdiagnosis)

• Failure to provide proper treatment for a medical condition

• Unreasonable delay in treating a medical condition

• Failure to obtain informed consent from a patient prior to performing medical procedures (even if the procedure is performed properly)

Other types of medical errors, which may involve instances of medical negligence include:

• Birth injury (including those resulting in cerebral palsy, erb’s palsy, bracial plexus palsy, and more)
• Anesthesia error
• Emergency room error
• Medication errors (which harm approximately 1.5 million people annually)
• Surgical errors
• Nursing home negligence

While this list covers the most common types of medical negligence, this list is not inclusive.  If you have been injured by a medical professional’s negligence, it is wise to speak with a legal professional who can examine your case to determine how best to protect you.  Read on to learn more about medical negligence lawsuits and your legal rights. 

Medical Negligence and Your Legal Rights

Laws pertaining to medical malpractice cases and medical negligence cases are highly technical and specialized.  Due to the complexity of medical negligence lawsuits, it is important to find an attorney who has a great deal of experience handling cases similar to yours.  A qualified attorney understands what it takes to aggressively defend the rights and interests of those who have been injured due to medical negligence.  They have the ability and resources to identify the key elements of your claim, locate the best expert witnesses, and present the proper evidence necessary to prove your losses resulted from medical negligence.  They are your best chance at getting the help you deserve following this devastating experience. 

Prior to contacting an attorney, it is a good idea to understand some of the basics about medical negligence lawsuits. 

What is a medical negligence lawsuit?

A medical negligence lawsuit is a civil (tort) case where the plaintiff (the patient or party acting on behalf of the patient) alleges that s/he has suffered damages caused by the medical negligence of the defendant.  The defendant is often the health care provider (i.e. the doctor, nurse, dentist, etc), though claims may also be brought against hospitals, clinics, medical corporations, and managed care organizations.  Because most health care professionals carry medical malpractice insurance, an insurance company is often involved in the medical negligence case as well. 

What ate the elements of a medical negligence lawsuit?

In order to have a viable claim, the plaintiff must establish the following four elements of a negligence tort:

• Duty to act:  The plaintiff must show that the health care professional(s) had a duty to care or treat a patient. 
• Breach of Duty:  The plaintiff must show that the health care provider failed to provide care or treatment that meets accepted medical standards.  This can be proved in a medical negligence case through expert testimony or by obvious errors)
• Injury:  The plaintiff must show that this breach of duty was a proximate cause of the injuries or death suffered by the patient.  
• Damages:  Lastly, the plaintiff must show that the injuries resulted in damages, such as wrongful death, medical costs, emotional pain, physical suffering, lost or reduced ability to garner income, loss of consortium, and the like.  If no damages were suffered as a result of medical negligence, the claim is not viable. 

While it is important to understand these elements of your claim, it is not necessary for you to directly prove each of these elements.  Rather, this is the job of your qualified and experienced medical negligence attorney. 

The Medical Negligence Case

Like all similar civil cases, the plaintiff has the burden of proving—by a preponderance of evidence (51%)—the aforementioned elements of the case.  However, not all cases of medical negligence go to trial.  When a medical negligence claim is filed with the appropriate courts, both the plaintiff and defendant have the opportunity to share information through a process called discovery.  At this point, if both parties can agree on the elements of the case, a pre-trial settlement may be negotiated and the case will not need to go to trial.  If agreement on such terms cannot be reached, then the case will proceed to trial. 

A strong medical malpractice attorney will have a solid proven track record of successful settlement negotiation and superior trial litigation. 

During a medical negligence trial, both the defendant and the plaintiff will present evidence and expert testimony regarding the standard of care, the specifics of the injury, and other key elements of the case.  The judge or jury (i.e. “fact-finder”) is responsible for hearing and weighing all the presented evidence to determine which is the most credible.  Once a verdict is rendered (favoring with either the plaintiff or the defendant) the fact-finder will then assess damages under the instruction of the judge. 

Damages in a Medical Malpractice Case and Medical Negligence Case

If the fact-finder favors the plaintiff in their verdict, the injured party may be able to receive both compensatory and punitive damages. 

Compensatory damages, as the name would suggest, are intended to compensate the injured party for their losses and suffering.  These damages can either be economic or non-economic. 

Punitive damages, which are intended to punish the health care professional, are only awarded in the event of wanton and reckless conduct.

Statute of limitations

It is important to bear in mind that all medical negligence claims are subject to a filing time limit.  While this time period varies depending on the jurisdiction, an injured claimant generally has between one and four years to file a medical negligence claim, which that time period beginning when the medical negligence was discovered.  This means that if a patient was injured but did not discover until months later after an investigation that medical negligence was a cause of the injury, the statute of limitations time frame begins on the date of discovery, not on the date of injury. 

Contact a Medical Negligence Attorney

If you or a loved one has suffered illness, injury or death due to medical malpractice or medical negligence, you have valuable legal rights.  Our qualified and highly experienced medical negligence attorneys have dedicated years of their professional efforts to helping people just like you.  We offer a no-obligation consultation during which you can get answers to your important legal questions and determine your best course of action.  Please contact our attorneys at Oshman & Mirisola today.