Do I Have a Case?

“Actionable” Negligence

Medical malpractice is negligence committed by health care providers. For negligence to be “actionable” (having all the required components to constitute a medical malpractice lawsuit), the claimant (person who is seeking recovery for damages) must be able to show the following:

• the health care provider owed a duty to the patient
• the health care provider breached that duty
• the patient suffered an injury, and
• the patient’s injury was a proximate cause of the health care provider’s breach

A duty is established as soon as the health care provider agrees to care for the patient. A level of competency and professionalism consistent with the specialized training, experience, and care of a “reasonably prudent” physician constitutes the standard of care, or professional duty, a health care provider owes to the patient. If the health care provider breaches the standard of care and the patient suffers accordingly, there is actionable medical malpractice. This duty is usually breached by negligence.

Medical negligence is the failure of a health care provider to meet the standards of conduct for duties relating to their medical profession. It is based on what a reasonable person with the same knowledge and skills would or would not do in the same situation. For example: a doctor who prescribes the wrong medicine can be sued for malpractice if the knowledge needed to give the correct prescription is specific to his field and known by any reasonable professional within that field.

Gross negligence refers to conduct so reckless or mistaken as to render itself virtually obvious to a layman without medical training. Some states will permit a person to bring about a lawsuit grounded in gross negligence without the need for expert testimony, based on the idea of “res ipsa loquitur” (the thing speaks for itself). An example of gross negligence would be a surgeon amputating the wrong limb or leaving a surgical instrument inside a body cavity of the patient.

The simplest way to figure out if there was proximate cause is to ask the “if it wasn’t for” question: If it wasn’t for the alleged negligence, would the harm or injury have occurred?

However, know that even if it is established that a duty existed and the health care provider breached that duty (i.e. failed to meet the required standard of care), a claimant may not recover for damages unless the claimant suffered injuries that were a direct result of the breach. If the breach resulted in no harm to the patient, a claimant generally has no right to recovery.

Medical Error Without Harm*

If the patient is not harmed by the physician’s error, the patient cannot recover damages as the result of the error. For example, if a doctor misdiagnoses stomach pain as caused by appendicitis, and surgery discloses that it resulted from a perforated ulcer, if the patient would have required the surgery to repair the ulcer the patient will probably be unable to bring a lawsuit–the surgery was necessary even with the correct diagnosis. However, if the patient was only suffering from indigestion, the unnecessary surgical procedure most likely would support a malpractice action.

Please note that the information provided on “Medical Malpractice Advisor” is not intended to be legal advice, and should not be treated as such. For assistance in finding an attorney qualified to offer legal advice, simply fill out the “Contact Us” form in the upper-right hand corner.

Related Topics

First Steps to Pursuing a Medical Malpractice Claim

*copied from ExpertLaw

Tagged as: actionable negligence, proximate cause, res ipsa loquitor