What Is Medical Malpractice?
Medical malpractice occurs where a medical practitioner acts in a negligent manner when treating a medical condition. Malpractice can occur from an action taken by the medical practitioner, or by the failure to take a medically appropriate action. Examples of medical malpractice include:
Failure to diagnose, or misdiagnosis of a disease or medical condition
Failure to provide appropriate treatment for a medical condition
Unreasonable delay in treating a diagnosed medical condition
The laws and rules governing malpractice lawsuits in each state can vary significantly.
A medical practitioner may also be legally liable if a patient does not give "informed consent" to a medical procedure that results in a harm to the patient, even if the procedure is performed properly.
For example, if a doctor does not tell a patient that a surgical procedure has a 50% chance of causing paralysis, the patient does not have the necessary information to make an informed choice to either have or refuse the operation.
If the patient has the operation, and is paralyzed as a result, the doctor may be liable even if the operation was performed flawlessly, as the patient might have refused the surgery if the risks were known.
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.
The Impact of "Tort Reform"
Medical malpractice actions have been significantly affected by "tort reform." Malpractice cases are very expensive to litigate, and your recovery of damages may be limited by statute. It is necessary to seek advice from medical experts, who can be very costly to hire. Due to the highly technical nature of medical malpractice litigation, it is usually best to go to an attorney who specializes in medical malpractice law, and who has the resources necessary to develop your case, hire appropriate experts and, if necessary, to take your case to trial.