Medical malpractice claims usually arise from one of four types of situations: failed or erroneous diagnosis & treatment, sub-standard treatment, lack of informed consent, and breach of doctor-patient confidentiality.
Failed or Erroneous Diagnosis & Treatment
The most common form of failure of treatment is when the doctor dismisses the presenting symptoms as temporary, minor, or otherwise not worthy of treatment. This situation may exacerbate the underlying condition or injury, and the doctor can be deemed negligent as result.
Erroneous treatment (or treatment made in error) is most likely to occur as a result of a misdiagnosis. However, a doctor who has correctly diagnosed a disease or condition may still fail to properly treat it. Other times, negligence is the result of a doctor attempting a new treatment that fails, when in fact a more conventional treatment would have been successful.
Sub-standard Treatment
All medical professionals are required to possess basic skills in diagnosing and treating illnesses and injuries. Thus, as an example, a general practitioner who administers substandard CPR (a required basic skill) to a heart attack victim who then dies as result cannot defend himself by arguing that he did not administer correct CPR because he is not a cardiopulmonary specialist. However, a board-certified cardiopulmonary specialist cannot be used to testify against that general practitioner on the grounds that the practitioner should have done everything that the specialist would have done with his advanced skills and training.
Also, under the locality rule and as an example: an oncology specialist in a small town void of up-to-date technology cannot be held to the same standard of care as an oncology specialist in a large urban city that offers access to state-of-the-art equipment and facilities.
Lack of Informed Consent
All states recognize the right to receive information about one’s medical condition, the treatment choices available, the risks associated with the treatments, and prognosis. It is required that this information be made in plain language terms and is sufficient enough for the patient to make an “informed” decisions about his health care.
If the patient has received this information, any consent to treatment that is given will be considered as “informed consent”. A doctor who fails to obtain informed consent for non-emergency treatment may be charged with a civil and/or criminal offense such as a “battery” (an unauthorized touching of the patient).
In order to claim that a doctor performed a treatment without informed consent, the patient must show that, had he known of the risk or outcome not previously disclosed, he would not have opted for the treatment and thus avoided the risk. The patient must show a harmful consequence to the unauthorized treatment.
Breach of Doctor-Patient Confidentiality
A patient seeking medical help should not have to fear that his medical concerns or conditions will be disclosed to others. There is a general expectation that the doctor will hold that special knowledge in confidence, and will only use it exclusively for the benefit of the patient.
The duty of confidentiality covers what the patient reveals to the doctor, and what the doctor may independently conclude based upon his examination of the patient. Confidentiality covers all medical records, communications between patient and doctor, and communications between the patient and other professional staff working with the doctor.
The duty of confidentiality continues even after a patient has stopped seeing or being treated by the doctor.
A doctor cannot divulge any medical information about a patient to a third person without the patient’s consent. There are limited exceptions to this, including disclosures to state health officials. However, in general unauthorized disclosures to unauthorized parties may be grounds for a medical malpractice claim.
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