What Constitutes Medical Malpractice?

Published July 23, 2014

surgery-1.jpgUnderstanding what constitutes medical malpractice is the first step in winning compensation for the harm that you have suffered. While you should always discuss the details of your issue with a medical malpractice lawyer to ensure that you have a case, here are the five major elements that a plaintiff must establish to file a successful claim, known as a "tort of negligence." Consider whether you can establish the following:

  • Owed duty: there is a legal duty to perform when a hospital or health professional admits and undertakes treatment of a patient. If you were admitted to the hospital or emergency room, or an individual treated you in public during an emergency, this is easily established.
     
  • Breach of duty: The hospital or health professional did not conform to the standards set forth regarding care of patients.
     
  • Resulting injury: There must be an injury directly caused by the breach of care; otherwise, there is no resulting damage, and no malpractice case.
     
  • Deviation from the norm: The acting practitioner did not provide care in the manner that is accepted as the industry standard in the appropriate profession.
     
  • Resulting damage: Not only is the injury described above necessary, but other damage must also be recognized to establish medical negligence. Types of damages can include emotional suffering and monetary loss from the loss of one's job.

Start the Judicial Process as Soon as Possible

If you can recognize each of these elements in your own experience, then it is likely that your own case is considered medical malpractice, and you should initiate the judicial process as soon as possible. Each state has its own statute of limitations for medical malpractice cases, and the statute can depend upon factors such as the age of the victim, the discovery of malpractice, and whether there was an attempt to conceal it or not.

Types of Damages That Can Be Awarded

There are both compensatory and punitive damages that can be awarded for successful prosecution of a medical malpractice case, and while punitive damages only arise in cases of wanton or reckless conduct, knowing your options before entering the courtroom is an extremely useful tool in the judicial system today. If you think you may have a case, contact your attorney for more information on what constitutes medical malpractice. Call 205.588.8070 today to schedule a free case consultation with a medical malpractice attorney from McBrayer Law Firm.

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