Medical malpractice occurs when a patient is harmed by a doctor (or other medical professional) who fails to competently perform his or her medical duties. State rules about medical malpractice vary from when you must bring your lawsuit to whether you must notify the doctor ahead of time. But there are some general principles and broad categories of rules that apply to most medical malpractice cases. Here’s an overview of the law and some of these special rules.
Basic Requirements for a Medical Malpractice Claim
To prove that medical malpractice occurred, you must be able to show all of these things:
A Doctor-Patient Relationship Existed
You must show that you had a physician-patient relationship with the doctor you are suing — this means you hired the doctor and the doctor agreed to be hired. For example, you can’t sue a doctor you overheard giving advice at a cocktail party. If a doctor began seeing you and treating you, it is easy to prove a physician-patient relationship existed. Questions of whether or not the relationship exists most frequently arise where a consulting physician did not treat you directly.
The Doctor Was Negligent
Just because you are unhappy with your treatment or results does not mean the doctor is liable for medical malpractice. The doctor must have been negligent in connection with your diagnosis or treatment. To sue for malpractice, you must be able to show that the doctor caused you harm in a way that a competent doctor, under the same circumstances, would not have. The doctor’s care is not required to be the best possible, but simply “reasonably skillful and careful.” Whether the doctor was reasonably skillful and careful is often at the heart of a medical malpractice claim. Almost all states require that the patient present a medical expert to discuss the appropriate medical standard of care and show how the defendant deviated from that standard.
The Doctor’s Negligence Caused the Injury
Because many malpractice cases involve patients that were already sick or injured, there is often a question of whether what the doctor did, negligent or not, actually caused the harm. For example, if a patient dies after treatment for lung cancer, and the doctor did do something negligent, it could be hard to prove that the doctor’s negligence caused the death rather than the cancer. The patient must show that it is “more likely than not” that the doctor’s incompetence directly caused the injury. Usually, the patient must have a medical expert testify that the doctor’s negligence caused the injury.
The Injury Led to Specific Damages
Even if it is clear that the doctor performed below the expected standards in his or her field, the patient can’t sue for malpractice if the patient didn’t suffer any harm. Here are examples of the types of harm patients can sue for:
- physical pain
- mental anguish
- additional medical bills, and
- lost work and lost earning capacity.
Common Types of Medical Malpractice
A wide variety of situations can lead to a medical malpractice claim — from a doctor leaving a sponge in a patient’s stomach during an operation to failing to tell a patient that a prescribed drug might cause heart failure. Most medical malpractice claims fall into one of these categories:
Failure to Diagnose
If a competent doctor would have discovered the patient’s illness or made a different diagnosis, which in turn would have led to a better outcome than the one actually achieved, then the patient may have a viable medical malpractice claim.
If a doctor treats the patient in a way that no other competent doctor would, the patient could have a medical malpractice claim. In a similar vein, it may also be malpractice if the doctor selects the appropriate treatment but administers it incompetently.
Failure to Warn a Patient of Known Risks
Doctors have a duty to warn patients of known risks of a procedure or course of treatment — this is known as the duty of informed consent. If a patient, once properly informed of possible risks, would have elected not to go through with the procedure, the doctor may be liable for medical malpractice if the patient is injured by the procedure (in a way that the doctor should have warned could happen).
Special Requirements in Medical Malpractice Cases
Many states have special rules and procedures for medical malpractice claims. It is important to know about these rules and follow them carefully.
Medical Malpractice Cases Must Be Brought Soon After the Injury
In most states, you must bring a medical malpractice claim fairly quickly — often between six months and two years, depending on the state. (The time period in which you must bring the lawsuit is called the “statute of limitations.”) If you don’t file the lawsuit within the specified period of time, the court will dismiss the case regardless of the facts.
When the time period starts ticking also depends on the state. In some states, the clock starts when the negligent act occurred; in others, it starts when the patient should have discovered the injury.
Special Medical Malpractice Review Panels
Many states require the patient to first submit the claim to a malpractice review panel. This panel of experts will hear arguments, review evidence and expert testimony, and then decide whether malpractice has occurred. The panel decision does not replace an actual medical malpractice lawsuit, and the panel cannot award damages, but it’s a hoop the patient must jump through before getting to court. The findings of the review panel can be presented in court, and courts often rely on a review panel’s finding of no medical malpractice to throw out a case before it goes to trial.
Medical Malpractice Attorney in Houston
Attorney Fuller is a seasoned attorney with nearly three decades of experience representing a wide range of clients. This includes individuals who have suffered an injury due to another’s actions, individuals facing criminal charges, those who have been arrested for DWI, individuals who have found themselves in a civil litigation dispute, and those looking for legal guidance in business.
After filling out a client intake form, Attorney Lanease D. Fuller will take appropriate action in your case to help you get the results you are looking for. This includes but not limited to gathering evidence, going to trial, and earning a settlement that is appropriate for your specific situation. Reach out to us today to take the first step towards settling your case.
LANEASE D. FULLER LAW
4615 S. Frwy St. 820
Houston, TX 77051