Medical Malpractice. You hear the term all the time. But what does it really mean?
Is it simply bad medical care? Is it a bad medical outcome? Or is it something else?
Medical malpractice is, at its most basic, simply negligence by a medical care provider, be it doctor, nurse or technician. While it is a complex thing to prove, it really is no different than the type of negligence that causes an auto collision. You could think of that as “driving malpractice.”
Like any legal claim for negligence, a malpractice case is made up of certain elements–the things that must be present in order to legally be deemed negligence. All negligence actions require three basic elements: Duty, Breach, and Harm.
What are the elements of a medical malpractice claims?
DUTY Are you owed a duty, a legal responsibility, by the medical professional? Basically, if you are a patient, you are owed a duty. The doctor, nurse, or medical technician is required to treat you to the level of the appropriate “standard of care.”
Standard of care simply means that the doctor (or nurse or technician) is required to provide treatment in the manner generally expected by their profession. A nurse isn’t held to a doctor’s standard of care, and a doctor isn’t held to a nurse’s standard of care.
The applicable standard of care may be very clear in some cases, or it may be a point of argument among experts. But generally speaking, any medical professional is expected to do what a well trained and qualified equivalent professional would do, or, in some cases, not do.
BREACH A breach of the standard of care is the failure to do something that should have been done, or doing something that shouldn’t have been done. An example of the former would be a failure to diagnose and treat an obvious injury or condition. An example of the latter would be operating on the wrong body part.
HARM Harm is a difficult concept in medical malpractice. In almost every case, the patient is coming in with a condition, injury or disease and the patient is seeking treatment for that condition, injury or disease. Harm, in the context of a medical malpractice claim, only occurs if the ultimate outcome of the condition, injury or disease is made worse, or altered, by the medical care provided or not provided.
An example may help clarify things. If you come into the emergency room with a broken arm and the doctor or nurse is negligent (malpractice), the harm is not the broken arm. There is only harm if the broken arm is made worse by the care, or lack of care. For example, if the broken arm should heal when proper treatment is given, and the arm doesn’t heal, that is the harm caused by the malpractice. A drastic example of this would be a broken arm that isn’t diagnosed and isn’t set, and an infection occurs leading to an amputation. In that instance, the amputation is the “harm” caused by the malpractice.
If you believe you or a loved one has been the victim of medical malpractice contact our office.