Where Is The Burden Of Proof In Medical Malpractice Cases?

Medical malpractice defined broadly is meant as a claim brought against a health care professional, such as a doctor or a hospital, wherein the health care professional violates the normal standard of care and, as a result, injury results. This is also sometimes referred to as medical negligence because it applies to hospitals, doctors and other healthcare professionals. Medical malpractice laws vary from state to state but there are some very basic fundamentals that are the same across the board.

Medical malpractice arises when a medical patient has been injured through the improper inaction or action of a healthcare professional or a medical facility. Legal liability for injuries that have arisen due to medical malpractice may be established under various legal theories.

Most medical malpractice cases go forward on the basis that a medical professional, such as a doctor or nurse, used negligence while treating his or her patient. To establish medical negligence, the burden of proof lies on the injured patient. The plaintiff, or the injured person, or their family if the negligence resulted in death, must prove the following:

* The existence of a duty owed by the doctor, nurse or hospital to the plaintiff. This could be in relation to a doctor/patient relationship. Especially if the plaintiff was in the hospital at the time, this is usually not at all difficult to prove, since hospital patients should be watched 24x7.

* The health care professionals deviation from the applicable standard of care. This is deemed as a breach of duty owed to the patient. Such a deviation could be a mis-diagnosis, an improper reading of charts of test results, improper medications given to the patient, or a host of other similar things.

* A relationship between the health care professionals deviation from the standard of care in relation to the patients injury. In other words, how did this error compromise or cause injury, either temporary or permanent, to the patient.

It is very hard to win a case of medical negligence since all health care professionals seem to stick to each other like glue. The damage to the patient could be permanent or could even result in death. In order to find a medical professional negligent, it must be shown that the doctors conduct fell below the generally accepted standard of medical care.

Let's look at one particular case study. The patient has been seeing a doctor for more than 6 months, when he operated to fix the patient's Achilles tendon. Since then the patient has had four surgeries and is still in a lot of pain. Once the patient contracted one type of staph infection and the last time he got MRSA. The doctor took out part of his heel bone which he was totally unaware of, and he still does not know whether the infection has gotten into the bone. He goes to see a new doctor at the end of the month. Does he think that he could get this new doctor to testify against the former doctor?

The answer is probably not! There is a code of ethics among doctors that makes them all stick together like flies stick to honey. Even though it would appear that the first doctor made a serious mis-diagnosis plus did unnecessary surgery, a case like this probably needs to go to court where the doctors involved are required by law to give their honest opinion, which a qualified malpractice lawyer can get them to do.

Also, a medical professional may be held accountable for the negligent prescription of a medication or of a medical device. Prescription medications are nothing to mess around with or administer or prescribe in any type of haphazard way. A doctor needs to understand how the patient may react to a prescription medication before they prescribe it, because if done incorrectly, it could cause more damage than the patient started with, which also falls into the medical malpractice category.

By:
Jon Arnold

For more insights and additional information about Medical Malpractice as well as finding additional resources to help you determine if you have a valid case of not, please visit our web site at www.malpracticeinfonow.com