Unless you need a Medical Malpractice Attorney to prove a fault in a case, doctors and medical practitioners have a legal and ethical duty to provide proper medical care to you and your family. These professionals are expected to meet a certain standard of care, including training, knowledge, and skills to diagnose and treat patients appropriately. However, things might, at times, go south ways.
Sometimes, medical professionals may fail to meet the expected standard of medical care, leading to a breach of duty. If your doctor breaches this duty and causes harm to you or your loved one, they may be liable for medical malpractice. On that note, if you suspect you or a family member has been a victim of medical negligence, you should hire a medical malpractice attorney for advice.
A Medical Malpractice Attorney can help prove a faulty case, which can often be a traumatic experience, with you or a loved one suffering injury at the hands of a medical professional that you placed your trust in. But how can you prove the wrongdoing that occurred? Usually, a team of professionals is in an excellent position to investigate and prosecute all aspects of medical matters.
They also help their clients achieve the best possible result, leaving no stone unturned. This is because, over the years, they have built a professional relationship with a panel of highly respected and experienced specialist medical practitioners in general and highly specialized fields of medical practice to assist them in this process. Below is some guidance from malpractice lawyers to note.
Understanding How A Medical Malpractice Attorney Helps To Prove A Fault Case
To enumerate, it’s worth noting that medical malpractice occurs when a healthcare professional neglects to provide appropriate treatment, takes appropriate action, or gives substandard treatment that causes harm, injury, or death to a person. The malpractice or negligence typically involves a medical error like diagnosis, medication dosage, healthcare management, treatment, or aftercare.
Eventually, medical malpractice law allows patients to recover compensation for any harm resulting from sub-standard treatment. In this case, according to the Medical Malpractice Center, there are between 15,000 and 19,000 medical malpractice suits against doctors annually in the United States. The standards and regulations for medical malpractice can differ between countries.
A hospital, doctor, or other health care professional is expected to provide a certain standard of care. The professional is not liable for all the harm a patient experiences. However, they are legally responsible if the patient experiences harm or injury because the health provider deviates from the quality of care usually expected in similar situations. However, several factors must be involved.
The Factors:
- Failure to provide a proper standard of care: The law requires that healthcare professionals adhere to specific standards or potentially face an accusation of negligence.
- An injury results from negligence: If a patient feels the provider was negligent, but no harm or injury occurs, there can be no claim. The patient must prove negligence caused injury or harm and would not have happened without it.
- The injury must have damaging consequences: The patient must show that the injury or harm caused by the medical negligence resulted in considerable damage.
Suppose the patient does not give informed consent to a medical procedure. In that case, the doctor or health care provider may be liable if the procedure results in harm or injury, even if it was carried out perfectly. If a surgeon does not inform the patient that a procedure involves a 30-percent risk of losing a limb, and the patient loses a limb, the doctor will be liable, even if the operation was done perfectly. The patient may have opted not to proceed if they had been informed of the risks. Herewith, many damages occur.
Including:
- suffering
- enduring hardship
- constant pain
- considerable loss of income
- disability
NB: The injured patient must show that the physician negligently rendered care and that such negligence resulted in injury. To do so, a few legal elements must be proven.
They are as follows:
- a professional duty owed to the patient
- breach of such duty
- injury caused by the breach
- resulting damages.
On the one hand, this includes doing nothing when they should have done something. On the other hand, this may be considered an act of omission or negligence. Dissatisfaction with the outcome of treatment does not imply malpractice. It is only malpractice when negligence and injury are involved, and negligence causes harm or injury. There are some cases where an error or negligence occurs.
Including:
- misdiagnosis or failure to diagnose
- unnecessary or incorrect surgery
- premature discharge
- failure to order appropriate tests or to act on results
- not following up
- prescribing the wrong dosage or the wrong medication
- leaving things inside the patient’s body after surgery
- operating on the wrong part of the body
- the patient has persistent pain after surgery
- potentially fatal infections acquired in the hospital
- pressure ulcers, or bedsores
In addition, other severe incidents in the past have included fires in hospitals and patients committing suicide while in the care of health staff. A team from the University of Illinois reported in Annals of Pharmacotherapy that blood thinners make up about 7 percent of all medication errors in hospitalized patients. They can lower the risk of stroke, heart attack, and blood pressure.
Blood thinners help prevent clots from developing in the veins and arteries but can also increase the risk of bleeding at higher doses. In 2013, the BMJ published findings that the leading cause of malpractice was misdiagnosis or delayed diagnosis. In 2016, Johns Hopkins scientists suggested that medical errors should rank as the third leading cause of death in the U.S.
That’s after heart disease and cancer. However, it is unclear exactly how many deaths result from malpractice. Measures that have reduced the incidence of hospital infringements include establishing guidelines for best practices and sustained implementation of hand hygiene rules.
What A Malpractice Case Involves
- Plaintiff: This is the person who complains. This can be the patient, a legally designated person who acts on the patient’s behalf, or the executor or administrator of the patient’s estate if the patient dies. In legal terms, the plaintiff is the person who brings a case against another in a court of law, the person who initiates the suit, and the one who is suing.
- Defendant: This is the party who is being sued. In a medical malpractice suit, it is the healthcare provider. This could be a doctor, a nurse, a therapist, or a medical provider. Even those “following orders” may be liable for negligent acts.
- Prevailing: This is the party who wins the case, whether the plaintiff or the defendant. If the defendant wins the case, the plaintiff has lost and will receive no compensation.
- Losers: This is the party who loses the case.
- Fact-Finder: This is the judge or the jury.
The plaintiff has to prove that four elements exist to succeed in a medical malpractice claim
Consider the following:
- A duty was owed by the health care provider or hospital
- A duty was breached because the health care provider or hospital did not conform to the expected standard of care
- The breach resulted in an injury, and it was closely linked to the injury
- Considerable damage resulted for the patient, whether physical, emotional, or financial
First, during the legal hearing, the plaintiff or their legal representative must file a lawsuit in a court of law. Before the trial begins, the plaintiff and defendant must share information through discovery. This may include requests for documents, depositions, and interrogatories. The parties can settle out of court if they agree. In this case, the case will not go to trial. If they disagree, the case will proceed to trial.
The plaintiff has to prove compellingly that the defendant was negligent. In most trials, the defendant and plaintiff will present experts to explain what standard of care was required. The fact-finder must then consider all the evidence and decide which party is the most credible. The fact-finder will give a verdict for the prevailing party. In other words, the judge will decide who wins.
If it is the plaintiff, the judge will then decide on damages. The losing party may ask for a new trial. In some courts, if the plaintiff wants a larger settlement, they may move for additur, which means asking for an assessment of the damages and awarding a more significant amount. If the defendant is dissatisfied with a considerable judgment, they may move for remittitur.
Which means they ask the court to reduce the amount of damages. Either party may take an appeal from the judgment. Usually, the plaintiff may be awarded compensatory and punitive damages under various cases.
They Include:
- Compensatory Damages may include economic damages, including lost earning capacity, life care expenses, and medical expenses. Usually, past and future losses are assessed.
- Compensatory Damages may also include non-economic damages, which assess the injury itself, psychological and physical harm, such as losing one’s vision or legs, extreme pain, and emotional distress.
- Punitive Damages are only awarded if the defendant is found guilty of malicious or willful misconduct. These damages are a form of punishment. It is compensation in addition to actual damages.
Lawsuits tend to be costly, time-consuming, and stressful. Anyone considering a lawsuit should weigh the possible pros and cons before taking action. If the injury is minor, the patient may spend more on the lawsuit than the money they will recover.
Why Ask A Medical Malpractice Attorney To Help Prove A Fault In Your Case
To avoid any need to consult a Medical Malpractice Attorney, your doctor should advise you when switching medications and involve you in the decision-making process regarding medication changes. They should explain the reasons for the change, highlighting potential risks, benefits, and side effects of the new medications. They should provide clear instructions on proper transition.
It could be a transition from one medication to another, including timing and dosage adjustments. Any strange reactions to medication could indicate your doctor negligently committing a medication error. For beginner complainants, medically speaking, prescription refers to the extinguishment of a legal claim or the loss of a right to take legal action due to the passage of time.
Prescription aims to promote legal certainty, avoid stale claims, and provide a fair and just resolution to disputes. Its periods are set out in various laws and regulations and may differ depending on the type of legal claim. It may also include the nature of the right in question. For example, the prescription period for a Road Accident Fund claim differs from that of a medical negligence claim.
The Prescription Act 68 of 1969 (“the Act”) regulates the prescription of medical malpractice claims in South Africa. Regarding the Act, a creditor has three years to institute a summons against a debtor to recover a debt, failing which the debt will prescribe and is no longer regarded as lawfully due to the creditor. However, the three-year period does not necessarily run from the incident.
Going By The Set Healthcare Standards And Medical Regulation Guidelines
Medically, the Prescription Act requires a creditor to know the identity of the debtor and the facts from which the debt arises. On the one hand, there are conflicting judgments on when a creditor possesses sufficient knowledge for the proverbial prescription clock to start ticking. On the other hand, some judgments require a creditor to possess the minimum facts necessary to take action.
Whereas others require a creditor to have professional or expert advice. The position is somewhat different when it comes to minors (persons under the age of 18). The Act provides that where the three-year period of prescription is completed before a minor attains the age of majority; the minor will have a year from the date he/she attains the age of majority to institute action against the debtor.
By way of example, if the incident occurred when the minor was 11 years old and he/she became aware of sufficient facts to institute an action a year later, the minor would need to institute an action within one year of attaining the age of majority. Conversely, the three-year period of prescription may begin while the claimant is still a minor but is completed after the lapse of one year.
Thus, the claimant enjoys no further extension, and the claim will be prescribed on the date the three years of prescription is completed. By way of example, if the incident occurred when the minor was 16 years old and he/she became aware of sufficient facts to institute an action a year later, the minor would need to institute an action before he/she reaches the age of 20.
How A Medical Malpractice Attorney Proves A Malpractice Has Occurred
For instance, you may have grounds for legal recourse if your doctor commits a surgical error, such as leaving an object inside the body or wrong-site surgery. If you experience injuries or complications following a routine medical procedure, consult a malpractice attorney immediately. Routine medical procedures include physical examinations, vaccinations, x-rays, and colonoscopies.
Medical negligence during delivery can cause defects and limitations that can last a lifetime for you or your child. If healthcare negligence has resulted in injuries to you or developmental issues to your baby, a medical malpractice attorney can help you seek compensation for the damages suffered. Getting a shocking second opinion from your doctor should raise concerns.
In this case, you should seek further investigation to determine if the other medical provider was professional. A medical malpractice attorney can help investigate your case, hold the responsible parties accountable, and assist you in seeking compensation for the damages. Medical malpractice cases can be complex, requiring a deep understanding of medical laws and procedures.
Fortunately, The Law Office Of Elliott Kanter will guide you throughout the claim process to ensure you recover the rightful compensation for your damages. On that note, you can contact them online or call (619) 231-1883 to speak with Elliott Kanter, their lead medical malpractice attorney, and let them handle your case. Below are a few other situations where you’ll need an attorney.
1. Not Establishing Duty Of Care
An important concept in medical malpractice cases is something called duty of care. This term refers to certain professionals’ responsibility to protect people under their care. This legal burden can apply to anyone, from drivers operating vehicles to factory owners who must provide safety equipment to their workers.
In the case of medical malpractice, this duty relates to the relationship between medical professional and their patients. Documentation that proves a doctor-patient relationship is a critical part of this facet of building your case. Signed agreements to undergo examinations or written forms showing the patient elected to be treated by the doctor are some forms of evidence you might be able to find.
2. Showing Failure To Meet Duties
Once you have established that the medical professional involved in the alleged malpractice had a duty of care towards the individual injured due to that malpractice, the task becomes proving that the medical professional failed to meet that duty. There are many ways that this duty might be breached, from improper use of equipment to a misdiagnosis due to gross negligence.
Knowing there was a breach of duty is one thing, but you’ll need solid proof to back that claim up. Witness testimony can be one avenue for finding evidence to support this part of your case. This can take the form of eyewitness testimony provided by other medical professionals or anyone else present when the alleged malpractice occurred to expert testimony, such as bringing in professionals to assess what might have caused the injuries the plaintiff suffered.
3. Injury Link To Malpractice
Now that there is clear evidence of malpractice, the next phase of arguing your case shows the extent of the injuries caused. This is a vital part of your case because it determines what compensation you’re due as a result of a settlement or guilty verdict. You want to get the total value of the damages that were caused so that you can use that money to get your life back on track.
While anyone who suffers from medical malpractice may understandably feel wary about undergoing treatment again, the injured person must undergo examinations quickly. Not only will this help to mitigate the injury and improve their quality of life, but it will also show clear documentation of the injury that can be brought up in court. This is a vital asset in proving your malpractice case.
How Working With A Medical Malpractice Attorney Helps In The Case
(i). Assessing Your Case
A malpractice lawyer’s familiarity with the laws relevant to your case can be very helpful in the initial steps of the legal process. Determining the strength of your case will help you determine whether or not it is worth investing time and resources in pursuing the case. Because you naturally have an emotional stake in what occurred, getting an unbiased, professional opinion from a lawyer is the best way to determine how to proceed.
(ii). Gathering Evidence
Successfully arguing a case requires building a comprehensive body of evidence. Gathering this evidence while also dealing with the fallout of the injury you or a loved one suffered can feel like a daunting task. That’s where the assistance a lawyer can provide for you comes in. They’ll be able to use their resources to help you develop your case, preparing a robust and well-supported argument to bring to your case.
(iii). Courtroom Experience
Unfortunately, knowing that you suffered malpractice isn’t enough to get the justice you deserve. Even in what might seem like a clear case to you, medical institutions can often bring their vast legal resources to bear in getting a favorable outcome for their staff. While you do have a right to represent yourself if you so choose, having the experience a lawyer offers on your side will give you the best chance of bringing your case to a favorable resolution.
Knowledge of specific laws around medical malpractice, courtroom procedures, and access to many other resources make hiring professional representation a valuable asset. Click here to learn more about medical malpractice cases and how contacting a lawyer can help you.
(iv). Limitless Ethical Experience
Understanding malpractice law and how to prove a breach of care occurred to establish fault is essential in your pursuit of justice. Consulting with a lawyer is the best way to determine the strength of your case and what steps you can take to move forward.
Some Experts In Kenya:
- Bond Advocates LLP: Bond Advocates LLP is a top law firm located at Top Plaza, Kilimani, Nairobi, Kenya. Our founding partners boast a combined 50+ years of experience as some of the best lawyers in Kenya. They are a top-notch litigation partner.
- Sheth & Wathigo Advocates: Sheth & Wathigo Advocates aspires to be the most innovative law firm by building long-term relationships with clients based on reciprocity, trust, and the highest standards of professional ethics. They adopt new models.
- Ndegwa, Katisya & Sitonik Associates Advocates: Founded in 1999 as Ndegwa & Associates Advocates, the firm has expanded to become Ndegwa &Sitonik Advocates. In commercial litigation, they deal with complex commercial litigation and arbitration matters, debt recovery, etc.
- Mwagambo & Okonjo Advocates: Mwagambo & Okonjo Advocates is a Kenyan commercial law firm providing a comprehensive range of quality legal services and solutions for local and international clients. They deliver practical legal solutions.
- Mosi & Co. Advocates: Mosi & Co. Advocates, a leading law firm based in Nairobi, Kenya, offers top-notch legal services in many practice areas. Their skilled lawyers pursue your goals, employing a goal-oriented approach to handle every legal matter. In addition, they put your needs first – as your success is their success.
In Conclusion;
It’s important to realize that the nuanced interplay of time, awareness, and legal status underscores the complexity of prescription in the context of medical malpractice claims is essential. Navigating these intricacies and finding a suitable Medical Malpractice Attorney is vital for creditors seeking justice and debtors seeking protection against stale claims. It is time to get there!
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