Elements of Medical Malpractice - Essay Example

 In other instances, the error may be a result of omission or negligence. For practice or occurrence to be considered medical malpractice, the patient must prove certain elements, which include liability, direct causal link, and damages. For an occurrence to fulfill the requirement of liability, the patient must prove that there existed a professional relationship between the health professional and the patient. This is often easy to prove. However, the patient must also prove that the health care provider concerned offered substandard care or was negligent. Depending on the circumstances, substandard care is at times not considered medical malpractice. The next element that the patient is required to prove is that there were injuries, which directly resulted from the negligence or substandard care (Mor & Einy, 2012).

In Jose’s case, there was some negligence since proper care was not provided in good time, which resulted in the injuries. It was clear that the permanent disability of his shoulder was due to the delayed surgery. In this particular case, the person who can be held responsible or liable is the emergency center physician since he understood the seriousness of the injuries. However, he failed to consider other measures since there was no anesthetist on call. He would have advised Jose’s parents on the seriousness of the problem and maybe they could have sought treatment elsewhere. The physician had foreseen the possible complications that could arise from the injuries but insisted that Jose waits until morning when the anesthetist would be available. Moreover, the physician did not inform Jose’s parents of the risks involved if the surgery was delayed. The parents could have opted for other options. Although the anesthetist was not available, he was not on duty at the particular moment and was thus not liable.

Since the hospital care providers had done the diagnosis, they owed the patient in question a duty. However, the hospital breached the duty by not providing the care in time. The breach led to an injury, which resulted in the anent damage on Joe's shoulder. Moreover, the patient suffered physical damage resulting from the injury.

In my opinion, the court would rule that there was malpractice since the physician owed Jose a duty. Moreover, the physician should have foreseen the dangers involved and informed Jose's patients. An example of a similar court ruling was between the plaintiff Donna De Costa and Dr. David Gossage and Gossage eye center. This was due to complications that De Costa incurred after unnecessary cataract surgery. Gossage was negligent of preoperative, operative, and post-operative malpractices. This is because he misdiagnosed the patient, performed unnecessary surgery, and delayed in diagnosing the postoperative infections. The defendant was found guilty since there was evidence, he was negligent and performed a cataract surgery, which was unnecessary, and the operation caused staph infections leading to vision distortion (Michigan Lawyers Weekly, n.d.).