Negligence in medical malpractice based in medical law - Research Paper Example

Negligence in medical malpractice based in medical law The law of Negligence includes misdiagnosis or the failure toadhere to standard medical practices. Medical professionals may not be held accountable for a pre-existing complaint; however, the worry of a pre-existing complaint may be considered negligence. On the part of doctors, nurses and medical care professionals in hospitals may result in patient harm / injury and even death. Damages caused by medical mistakes in health centers can lead to future health problems, additional hospital bills and psychological distress. In the worst instance, a hospital error causes death of a patient, bringing about grief and financial strain on the deceased’s relatives (Andrew Grubb 445). A wrongful-death lawsuit can be filed to demand damages for lost wages and suffering or pain. Examples of hospital errors that could result in medical malpractice include: Birth injuries: Improper labor services resulting injury to a baby, at times leading to complications such as Erb’s palsy or cerebral palsy. Prescription errors: This may be over or under medication, or administration of the wrong drug. Improper diagnoses: A patient may be treated for an illness he or she is not suffering from or a disease remains untreated because of the doctor’s failure to recognize a intimidating condition. Surgical errors: Negligence may lead to infections or surgery on the incorrect body part or even the wrong patient. Medical malpractice law lies under personal injury law subset and its practice frequently overlaps with litigation law. This area of practice deals with legal claims on medical care specialists when the care they offer or the lack thereof, cause injury, damage, harm and/or death of the patient. The laws guiding medical malpractice varies from one state to another. These highly regulated procedures explain many aspects of the practice process, including the following: If notice of the malpractice assertion have to be given to the medical professional before filing; If the claim must be handed to a malpractice review board before being filed in court; How speedily a medical malpractice claim should be filed; Determining the essential qualifications for a professional medical witness, for the reasons of testifying; and Establishing statutory caps on compensations that may be awarded to the plaintiff. Although medical negligence is normally attributed to the medical professionals responsible for patients’ diagnosis, medical care / medical treatment, medical corporations, managed care organizations, clinics and hospitals may as well be sued for their employees’ actions (Stauch 66). As with every personal injury claim, proof of negligence is vital. The tort of negligence comprises of 4 elements which must be all proven to attain this verdict. The 4 elements include: (i) There was a duty of medical care owed; (ii) The medical care professional desecrated the standard of care obliged, which demonstrated negligence; (iii) This negligence by the medical professional caused the injury /harm; and (iv) There were compensable damages directly resulted from the injury/harm suffered . Since there is a patient - doctor relationship, the first element is usually already established in these kinds of claims. For the 2nd element, if there is no an obvious and glaring blunder, expert witness testimony is commonly implemented to prove the negligent behavior or actions. The complainants are the party passing the action and they bear the burden of attesting these elements in their claims against the medical care giver, the defendant (Smith). Medical malpractice claims are the subject of extreme controversy. Healthcare professionals and medical care businesses have encouraged legal reforms meant to eradicate big money awards for health damages, claiming that defending a case against the various lawsuits and the exorbitant compensations have resulted in a costly healthcare costs. In some states, this aggressive advocacy for these measures has resulted to various tort reform laws limiting the amount of compensations on damages that may be given to a complainant for non-economic losses; referring to damages for situations like loss of vision or a limb and pain or suffering. Personal injury counsel compensation and fees have been capped in various jurisdictions as well. Meanwhile, personal injury attorneys and other proponents claim that these lawsuit money compensations are a like mere drop in the ocean when compared to aggregate healthcare expenditures. They further argue that tort reform offers free supremacy to the medical profession, confiscating avenues for victims of medical negligence to pursue whenever they have been injured / harmed and leaving no way of policing the health / medical profession. The first recorded medical malpractice case in the US (Cross v. Guthery) was reported in Connecticut shortly afore the American Revolution. Mrs. Cross complained that something was wrong with her breast and her husband sent a doctor named Guthery to check her up. The doctor examined the patient, diagnosed her illness as scrofula, hence amputating her breast. Just after the surgery, Cross hemorrhaged to a point that she passed away. Dr. Guthery conveyed his regrets to her husband, and then sent him a 15 pounds bill. Cross hired an attorney, who convinced a jury to discharge Dr. Guthery's bill and instead award Cross 40 pounds as compensation for loosing his wife's company (McHale 446). Nowadays, American doctors have a bigger chance of being charged than any other professional in the US, or any other doctor around the globe. In 1989, there were about 900 malpractice complaints coming before American doctors daily, and the US in the world’s only country where this situation subsists (Stauch 578). The rate in which medical providers were sued in Canada within 1989 was 10 times lesser than in the U.S., while in Britain only 3 to 4 out of 1000 medical professionals could expect to be prosecuted (while some 43% of all obstetrician-gynecologists practicing in New York had been sued 3 or more times) (McHale 451). It remains imperative that members of medical community to be conversant in medical malpractice law so as to better defend themselves against potential complaints. Malpractice lawsuits are common and may be brought up against nurses, doctors, and technicians at any moment. Conversely, a patient who is considering suing a medical professional for malpractice must be cognizant of the kinds of defenses a professional or hospital will apply against them. Being conversant with these defenses can assist both the patient and lawyer build a case that protects them against malpractice lawsuits, as well as help plaintiffs following a malpractice case comprehend the evidence they should show in order to attest medical negligence. Many Medical Malpractice Defenses take momentous parts in medical malpractice lawsuits in both federal and state courts.  They get into action mostly when dispute solving out, intervention, negotiations and other Medical Malpractice Settlement methods that aim resolving lawsuits fail to avoid an actual trial.  Additionally, numerous medical malpractice defense attorneys have an experience of many years/decades of representing health care professionals (Andrew Grubb 966).  Veteran health malpractice defense counsels have effectively investigated potential claims before lawsuits are filed, and achieved advantageous medical malpractice court verdicts. When a patient receives a substandard treatment from an infirmary, it is most probable that a Medical Malpractice Negligence led to the problem.  A patient may sometimes receive the apology that there had been a “complication,” that can be nothing except a mere hospital cover-up of negligence (McHale 59).  Whether or not there stands truth to this matter, the patients’ first action should always be filling a Medical Malpractice Claim. They will consult medical malpractice experts or physicians on the same meadow to review their medical records and attest that the former physician is or is not responsible of the impending injury.  They should find experienced trial lawyer who will aid him in evidencing that there was misdiagnosis, surgical mistakes, medication errors or undue post-operative complications (Harpwood 23). Contrariwise, the Medical Malpractice Lawsuit leaves the physician or medical care expert on the line for unwanted stress and losses.  They know that the negligence in medical malpractice lawsuit is not only detrimental against his patient, but also leading mishaps against him.   They will definitely prepare them the finest Medical Malpractice Defense available since their reputation, economic, personal affairs and above all, his professional are also affected.  Their medical malpractice insurance may be not liable to cover the entire impending liabilities.  They will likewise obtain services from a good medical malpractice professional witness and attorneys to establish that everything was done well during a medical procedure such as management of antibiotic therapy, understanding of diagnostic trainings, pathological interpretation, or labor and delivery (Harpwood 160). The Medical Malpractice Defenses which are viable for defendants to challenge Medicinal Malpractice include: The patient is also negligent, hence caused his own harm. The patient did not play his part to meet half-way and mitigate his own harm, which worsened the damage. The patient ordered an “informed consent” for treatment and procedure hence assumed risks of any undesirable. The alleged injury is “unavoidable” and can still occur even in absence of negligence. The patient failed to deliver important information that affected certain procedure(s) or diagnosis. The patient engaged in some activity(s), which aggravated the harm, following the alleged malpractice. The above-mentioned Medical Malpractice Defenses are largely allowed to give the defendant the preeminent defense possible as directed by law.  To avoid money and effort, wasted time, the defendant should make use of any defense accessible to him/her.  These will reduce the lawsuit costs and maximize the likelihood of successful result in the defending personal injury lawsuit.   Many Medical Malpractice processes cost the medical industry and profession millions upon millions dollars, and medical care providers do not wish to add up to that hefty number (Andrew Grubb 413). A statute of limitations puts down a time limit to seek legal recourse for unlawful conduct. When this time period passes on, the injured victim loses the right to file a claim to collect damages. Regarding to medical malpractice, injured persons in New York, for instance, usually have 30 months to case a lawsuit (Andrew Grubb 19). When this time period expires, the injured person will be barred from filing any New York medicinal malpractice lawsuit, regardless of their injuries severity. Although launching legal claim in the absence of supporting medical opinion remains risky to the client, attorneys practicing in this medical malpractice law should understand that the limitation period usually begin to count before a written medical judgment is available.  If the plaintiff is consulting an attorney, he/she probably knows that he/she has a concrete potential claim.  The 2 year limitation period commonly provided by the legislation gives lawyers more time to conduct proper investigations and satisfy themselves that their case has merit.  In most cases, however, it will be essential to start legal proceedings although there remain some doubts on the query of liability The medical malpractice law varies from country to country, and in the US, from one state to another. Generally, however, an effective malpractice claim should first establish that the care provider had a legal duty on the affected patient. Inhumane as it might appear, a doctor walking in most U.S. states street has no legal responsibility of helping an injured person (Stauch 783). Though, a doctor who offers aid voluntary becomes liable for any injury resulting from malpractice. Evidently, a legal duty exists if a patient visits a doctor seeking for treatment and the doctor approves to provide it. In particular cases, physicians can also have a duty towards non-patients. For instance, a jury might define that a doctor who did not diagnose epilepsy in a patient is legally responsible to others injured in vehicle accident caused by epileptic seizure suffered by this patient while driving An effective malpractice lawsuit must determine that the caregiver's obligation to the patient was broken, failing to meet acknowledged standards of medical care. For this cause, medical malpractice suits often comprise of a testimony from expert witness, who sometimes provide conflicting views about what constitutes a rational standard of medical care. Often, such standards are laid by medical specialty associations. Medical professionals are projected to keep themselves informed on current treatment approaches, but in many circumstances more than one treatment choice exists and a physician is allowed to select from those choices that would be considered rational and practical by a considerable number of medical coworkers. In some cases, Medical professionals try to perform procedures which are beyond their competences. Physicians who assert to be specialists while are not certified by an appropriate specialty board may lack the knowledge or skills to provide proper treatment. Lastly, a valid malpractice lawsuit must establish that the medical profession’s breach of duty caused real damage on the patient. Contingent to the jurisdiction, such damage may include mental and physical suffering, financial losses, and lost income. However, some states (Indiana and California, for example) significantly limit compensation offered in case of a medical negligence (Harpwood 106). As many legal experts assert, the scenario for malpractice lawsuit usually runs something as follows. Firstly, the medical specialist must be proved to be guilty of negligence, which means carelessness when the medical specialist had, but breached, the duty to act in a rational manner (usually based on the an expert witness’s testimony, i.e., a person in the same or alike specialty as the suspect who can explain technical, medical and scientific issues to a jury) on the patient. Malpractice may also occur when a patient is not given informed consensus before undergoing a treatment. The doctor should discuss with the patient on the nature, risks and benefits of any proposed, medical action, as well as other practical options. Many hospitals and heath care givers require patients sign agreement forms indicating that they assume whichever risks from the process. However, such forms can not shield a caregiver from a malpractice lawsuit if negligence has happened or the risks are not fully clarified to the patient. Concerning an emergency treatment, a medical profession is not required to get informed consent. When a patient is considered unable of making an informed decision due to age or other factors, approval is required from the legal guardian of the patient. A misdiagnosis by medical professionals is not necessarily reason for a malpractice lawsuit, unless the professional was negligent in not taking a correct medical history, ordering correct tests, or recognizing obvious symptoms. Works Cited Andrew Grubb. Principles of Medical Law. London: Oxford University Press, 2010. Harpwood, V. H. Medicine, Malpractice and Misapprehensions. London: Taylor & Francis, 2007. McHale, Jean V (Jean Vanessa). Health Care Law: Text and Materials. New York: Sweet & Maxwell, 2007. Smith, James. Coursesmart: Basic principles of medical law and ethics. June 2012. 27th November 2012 . Stauch, Marc. Sourcebook on Medical Law. London: Routledge, 2002. Read More