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How do you prove Medical Malpractice?
By Rebecca Kujawa on January 7, 2019

Throughout our lives, we obtain medical care for all different types of conditions, diseases, aches and pains. From time to time, many of us feel that we – or a loved one – were not treated properly by a hospital or doctor. Regardless of the medical concern being addressed, doctors are required to exercise a certain standard of care. The standard of care is the generally accepted method of care a doctor of the same specialty would use when treating a patient afflicted with the same condition. Medical malpractice occurs when a medical provider breaches, or violates, that standard of care and the patient is injured as a result.

Medical malpractice can take many forms. Here are some examples of medical negligence that might lead to a lawsuit:

  • Failure to diagnose or misdiagnosis
  • Misreading or ignoring laboratory results
  • Unnecessary surgery
  • Surgical errors or wrong site surgery
  • Improper medication or dosage
  • Poor follow-up or aftercare
  • Premature discharge
  • Disregarding or not taking appropriate patient history
  • Failure to order proper testing
  • Failure to recognize symptoms

In order to prove a medical malpractice claim, the patient must introduce evidence (1) to demonstrate the standard of care and (2) to show that the doctor breached that standard. In order to do this, the patient must hire an expert witness. The expert needs to have qualifications and expertise very similar to the defendant doctor and must testify under oath that the doctor’s treatment fell below the standard of care. Finding an expert witness is no easy task. Many doctors do not want to testify against fellow doctors. Oftentimes, we are required to go out of state to obtain an expert willing to testify – typically at great expense.

Because medical malpractice lawsuits are extremely expensive to litigate, for a case to be viable, the patient must show that he or she suffered significant damages. If the damages are small, the cost of pursuing the case might be greater than the eventual recovery. Therefore, it is common for attorneys to not accept a malpractice case unless the end result to the patient was very severe or even catastrophic. For example, a doctor may prescribe an incorrect medication, but the patient only feels dizzy for a couple of days as a result and suffers no serious permanent injury. While the doctor may have not complied with the standard of care, there is not a damage of a sufficient quantity to merit a lawsuit.

It is also important to note that simply experiencing a bad outcome isn’t always proof of medical malpractice. A doctor can exercise an appropriate degree of care, and the patient may still not recover from the injury or disease. Under these circumstances, there is no actionable claim for medical malpractice.

A doctor is also not responsible for “an error in judgment.” This means if there is more than one acceptable method of treatment and the doctor chooses treatment A over treatment B, and treatment A is not successful; the doctor is not liable as long as treatment A is one of the acceptable treatment methods. The doctor is given some leeway in exercising his or her judgment in choosing the method of treating an injury or disease.

Given the difficulty and expense of proving a medical malpractice claim, it is important to be an involved and savvy healthcare consumer. Be an active participant in your healthcare and if you feel that there has been malpractice in your treatment, feel free to call HoganWillig, PLLC (716-636-7600) and we will provide you with a free case evaluation.

*It is essential to act promptly to preserve evidence, investigate the malpractice in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations which are as short as 1 year and 90 days to 2.5 years.

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