If you are unsure about whether you have a medical negligence case after an injury, you are not alone. Many people are faced with the same dilemma. While some medical negligence cases are pretty straightforward, others can be complicated by issues bothering on informed consent, among other legal and medical obstacles.
This article discusses the major factors that determine whether or not you can file a claim for medical negligence.
Does a Bad Outcome Equal Medical Negligence?
Modern medicine and technology are affording people healthier and longer lives by providing treatments for ailments that literally had no cure in the past. However, this is no guarantee that a particular treatment or procedure cure a patient’s health issue. In fact, despite the best efforts of a medical professional, medical procedures can still go wrong.
Sometimes, it is impossible to foresee complications arising from the use of routine procedures. Truth is, if medical practitioners were held liable each time there are undesirable results, medical practice will be nearly impossible with the constant legal battles that ensue.
When Does Medical Negligence Actually Occur?
Medical negligence happens when there is failure on the part of a medical professional to provide treatments and procedures that meet the standard care expected of a reasonably skilled and competent healthcare professional, with a similar qualification, would have provided.
If the above definition feels complex for your situation, that is because it is. In most medical negligence claim cases, both parties are required to hire the services of “expert witnesses” to explain to the jury what standard of care was expected of the medical professional, and whether this care was provided or not.
These expert witnesses must be experienced in the field they are testifying to the jury about. Still, asides clear-cut cases, trying to predict whether a healthcare professional acted negligently in the eyes of the law can be tricky, as there is no straightforward formula since the jury has to decide after listening to the expert witnesses on both sides.
If you are still trying to determine whether or not you have a medical negligence case, one of your best options is to reach out to a doctor who can honestly assess your doctor’s performance. If you do not have this kind of access to a doctor willing to take risks in a case tending towards character assassination, your next best bet is working with a reputable plaintiff’s medical negligence solicitor.
Common Ways a Doctor Negligently Breaches Duty of Care
There are a few clear-cut cases where the average person knows that a medical professional has acted negligently. These include:
- Failure to inform a patient about the significant risks associated with a treatment or procedure with over 5% of occurrence.
- Lack of informed consent in a non-emergency procedure.
- Operating on the wrong spot or even the wrong patient.
- Missed or delayed diagnosis.
What Are Your Chances?
If you are a potential medical negligence claimant, it is only ideal that you try to know your chance of winning your case beforehand. The facts of the situation you face are already constant; you did not create or choose your preferred medical negligence case. So, forming an objective list of the type of medical negligence cases in which you have high chances of winning will do little to help, when it is only your potential claim that matters to you.
That said, the types of medical negligence cases that give you huge winning chances are those in which the issue of fault is clear and cannot be disputed. In this case, the patient must have been injured as a result of a situation that should have been avoided.
But on the flip side of the coin, it is much tougher to come out victorious is a medical negligence case where the patient has clearly suffered an injury, but the defendant’s liability presents a tricky prospect. Remember that medical negligence does not occur just because a patient ends up with an unfavorable outcome from the treatment. In medical negligence cases in which both parties have conflicting opinions on the liability, the winner typically comes from the side with the medical expert witness who has presented a better case before the jury.
The Role of Statue of Limitations in Strong Medical Negligence Cases
In order to protect healthcare professionals from excessive legal cases and manage the costs of medical liability insurance, certain rules are enforced for medical negligence cases. The shortened nature of “statue of limitations” is, by a mile, the rule that impacts most cases. For instance, your case may be thrown out the court’s door if the negligent act occurred, say, four years ago, even if you only discovered its impact much later.
Your Role in A Medical Negligence Case
As part of a litigation process, it is your duty to prove that you are entitled to a compensation. This means that you are able to establish each element of the claim by providing superior evidence. The elements that a claimant must establish in a medical negligence case include:
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- Doctor-Patient Relationship
The claimant must be able to demonstrate that there was a doctor-patient relationship. While this may feel like a pretty straightforward process, sometimes this aspect of a medical negligence case can be complex. If, for instance, a medical professional talked about a procedure to guests at a party and a patient applied the treatment based on those comments, he or she will barely be able to prove that a doctor-patient relationship existed. Even if the healthcare professional was consulted but did not directly apply such procedure on the patient, it may be impossible to prove that the requisite relationship did exist.
- Proof of Negligent Care
As with every medical negligence case, the claimant must be able to demonstrate that the medical professional acted negligently. As noted above, medical injuries could arise as a result of other factors outside of the control of the healthcare provider. While negligence is apparent in some cases, you may be required to prove that a healthcare provider deviated from the duty of care in other cases.
Establishing causation in medical negligence cases can be especially difficult because most patients who seek treatment have an existing ailment. Hence, defendants in a medical negligence case typically claim that the patient suffered a pre-existing injury rather than one that was caused by the medical professional. Other factors also play a role in an injury, so even if a patient died while a medical procedure was administered, it can be difficult to determine whether the death would have occurred if there was no negligence on the part of the doctor. This aspect of a medical negligence claim is one that would need the assistance of a medical expert.
Even if the healthcare provider did act negligently, there would be no compensation if the claimant cannot prove that he or she suffered harm in some way. This, in legal jargon, is known as damages. Patients who have suffered injury may suffer damages that include extra medical costs to fix the damage caused by the negligence of the medical professional. It may also affect the earning capacity of the patient, and even cause pain and mental anguish. If the injured patient can establish these elements, he or she way want to make a claim for medical negligence.
- Legal Analysis
If you have been injured as a result of negligent medical care, you may want to consult with a medical negligence solicitor. This type of lawyer can help you break complex legal terms down and advice whether you can establish the elements needed for a medical negligence case. A medical negligence solicitor may also be able to retain the help of a medical expert who can help strengthen the claim, and explain to the jury how the actions of the medical professional involved resulted in an injury.
It is important to note that even though large aspects of the claim will be based on the expert witnesses and evidence provided, having an experienced medical negligence solicitor means you have one who can help rebut the defendant’s testimony. Being able to negate the testimony of the other party plays a key role in the outcome of the case. It is very likely that the defendant will hire a solicitor who has experience in defending medical negligence claims. Having one in your team makes for a level playing field.