7th Jun 2017
What is medical malpractice?
Medical malpractice is negligence. Specifically, it is the negligence of a healthcare provider. The act of negligence may be in the diagnosis, care, or treatment of a patient. Every medical provider has a duty of care. When the medical provider breached that duty, and it results in an injury to the patient, then you have a medical malpractice situation. There may be an issue of fact about what the standard of care was for the provider. There may also be an issue of fact on whether that breach caused by the injury.
The patient must prove each fact in a court of law which can be very challenging. We prove malpractice by direct evidence or circumstantial evidence. The court will not assume there is malpractice just because there is a bad result for the patient. Proof of malpractice is also difficult because medicine is a very technical area, so your lawyer must hire experts to testify. There is an exception to this general rule of needing experts called the common knowledge exception. You can get to the jury without an expert if the care or result of the care is patently bad, and a lay person can assess the wrongfulness of the act and attribute the plaintiff’s injury to the wrongful conduct without the assistance of expert testimony. This common knowledge rule is rarely applied. In one case during back surgery, the tip broke off one of the medical instruments. The question was whether the surgeon applied too much force? The court ruled that the patient had to prove this with expert testimony.
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