After someone has been injured by a medical practitioner, what happens? They may decide that they want so sue the doctor for the injuries they have suffered. If they decide to sue, they should consult an attorney who specializes in medical malpractice. So how does a medical malpractice attorney decide if he or she is going to take on a new case? It depends on whether the attorney can establish four crucial elements.
1. Duty. There has to be a legal duty between both parties. We call this the “standard of care.” It also has to be established that the plaintiff was owed that duty by the defendant. If the plaintiff is either the patient, a legally designated administrator of the plaintiff, such as a power of attorney, or a deceased patient’s legal administrator, then they are owed a duty of care by the defendant. The defendant can be any provider of medical services, which includes not only doctors and nurses, but also medical corporations, hospitals, clinics, and managed care companies.
2. Breach. The medical malpractice attorney has to be able to demonstrate that the legal duty that was previously established was in fact breached by an act, or omission of the defendant. Oftentimes, we call this a “deviation from the standard of care.” This is done by comparing the care that the plaintiff received from the defendant with the appropriate “standard of care.” The “standard of care” will be established by testimony from medical experts, who will testify as to “what the average health care provider of reasonable competence would be expected to do under the same circumstances as in the case under review.”
3. Causation. The medical malpractice attorney must also prove that the breach caused the plaintiff’s injury.
4. Damages. The presence of some kind of damages will also be an important factor. Financial damages must be the result of the present injury and not pre-existing. This requirement also applies to emotional damages. If the damages are pre-existing, then the damage claim may be dismissed in court.
As the current presidential race has brought the issue of health care and health care reform back into the spotlight, the often obscure world of medical malpractice is beginning to get new attention. It is important for patients to understand how a medical malpractice attorney will decide whether their case is one that can be won in court. If you have questions about a medical malpractice issue, please contact the personal injury lawyers at Kilpatrick & Philley PLLC at (601) 856-7800.
Source: “How a Medical Malpractice Attorney Decides to Accept a Case,” published at PR-Inside.com.