In movies, television programs and literature, doctors are often portrayed to be infallible marvels who are able to work miracles in what seem to be hopeless situations. While physicians can often do amazing things, they cannot turn every case into a success story.
It is unreasonable for patients to expect perfection from their doctors, but it is entirely fair that medical professionals be held to real standards of care and proficiency. Those who fall short of these benchmarks and thus cause harm to their patients may find themselves on the losing end of a medical malpractice lawsuit.
Medical malpractice cases are frequently brought under a negligence theory. For negligence to be demonstrated, a plaintiff needs to show that the medical professional in question had a duty to the claimant, the medical professional deviated from the standard of care to which he or she is rightly held and that the deviation from the standard of care was what caused the injury to the plaintiff.
Though all three of these elements must be established in order to prove negligence, perhaps the most contentious aspect of most medical malpractice cases is the determination of the appropriate and accepted standard of care.
The standard of care is often broadly defined as a course of treatment that has wide acceptance on the part of medical experts as being appropriate for addressing a particular disease or condition and that is extensively used by a wide spectrum of medical professionals. The problem, however, is that there may be significant disagreement among medical experts as to what can rightly be deemed “standard” treatment under a given set of circumstances.
Generally speaking, the proper standard of care in medical contexts can be determined by looking at how comparably trained and qualified medical professionals would have treated a patient in the same situation. Further factors used to assess standard of care are things such as whether a doctor has exhibited the skill and attention that a competent doctor in the same field would and whether a doctor exhibited a level of knowledge and skill comparable to others in the local area. In cases where a doctor diverges from the course of action other physicians would have taken, they may be able to argue that a respectable minority of similarly situated practitioners would have taken similar action.
To prove a breach of the standard of care in a medical malpractice action, the testimony of medical experts trained in the same specialty as the defendant physician will be essential. Such an expert will be used to establish the relevant standard of care as well as to lend support to the allegation that the defendant failed to meet it.
Victims of medical malpractice may initially feel they have little chance of prevailing simply because the doctor at issue is the one who crafted the medical reports relevant to the matter and who may be the only person able to describe or potentially mischaracterize the events that transpired. However, there are safeguards in the law that can help mitigate this type of imbalance.
The legal doctrine of “res ipsa loquitur,” or “the thing speaks for itself” can be utilized to help plaintiffs successfully argue that their injury is simply not the sort of harm that could have occurred in the absence of the negligence alleged. If this construct is involved successfully, the burden of proof shifts. It will no longer be the plaintiff’s duty to prove negligence, but rather it will be the defendant’s responsibility to demonstrate that he or she was not negligent.
For this shifting to occur, a plaintiff needs to demonstrate that:
· Evidence of the true cause of the injury is unavailable
· The injury is not one that typically happens without the negligence of another
· The plaintiff did not cause his or her own injury
· The defendant had exclusive control over the instrumentality of injury
· There were no other potential causes of injury besides that over which the defendant had complete control
While conclusively establishing medical malpractice can be a difficult process, patients who have been injured by a breach of the relevant standard of care should not hesitate to seek compensation.
An experienced medical malpractice attorney can help advise such individuals of their rights, assess the merits of their claims and zealously
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