Malpractice

Malpractice occurs when a member of any profession acts with negligence or incompetence in dealing with a patient or client. The most common type of malpractice relates to the medical field when a doctor fails to give a patient the degree of care that another doctor of similar skill would give in a similar situation. Legal malpractice refers to the failure of an attorney to give his client the level of service that another attorney in the same field would give in the same or similar circumstances. To explore this concept, consider the following malpractice definition.

Definition of Malpractice

Noun

  1. Performance by a physician, attorney, or other professional that falls below the normal standard of care or service for a patient or client, especially when this failure causes injury or loss.
  2. A failure to exercise an ordinary degree of professional skill and learning by one providing professional services, whether through contemptible ignorance, negligence, or criminal intent.

Origin

1665-1675   English mal- + practice

Medical Malpractice

Medical malpractice takes place when a doctor or other medical professional fails to perform his duties adequately and in turn, harms a patient. The rules concerning medical malpractice cases vary depending on the jurisdiction, but the basics remain the same regardless of the state. Medical malpractice cases can also come about when a medical professional fails to do something such as provide timely or appropriate treatment. When this occurs, it is called a failure to act or “omission.” The key to medical malpractice is the standard of care expected by other medical professionals in the same field.

Requirements for Medical Malpractice Cases

Malpractice does not apply when a patient is simply unhappy with the care he received. In order for a patient to prove medical malpractice, his situation must meet certain specific requirements, including:

  • Existing doctor-patient relationship – the plaintiff must show that the doctor was hired to oversee his care, and in fact treated him to some degree.
  • The doctor was negligent – the plaintiff must prove that the doctor was negligent in diagnosing and/or treating the patient, and that the doctor’s care or failure to provide care caused harm. Additionally, the plaintiff must show that another doctor in the same field, with the same skills would have acted differently.
  • The injury was caused by the doctor’s negligence – the plaintiff must show that his injuries or damages were caused by the doctor’s negligent acts or omissions, and are not the result of another factor.
  • The injury led to certain damages – the plaintiff must show that his injuries, caused by the doctor’s negligence, caused him harm such as physical pain, mental anguish, or additional medical bills.

Common Types of Medical Malpractice

There are an endless number of potential medical malpractice suits, but some are more common than others. These include:

  • Failure to diagnose – If a doctor fails to make a proper diagnosis, and it is believed that another competent doctor would have discovered and diagnosed the medical condition, an assertion of malpractice may be made.
  • Failure to warn a patient – If a doctor does not warn a patient about recognized risks involved with a particular medication, course of treatment, or procedure, the doctor has breached his duty of informed consent. The patient may have a viable malpractice claim if he can show that, had he known of the risks beforehand, he may have opted for alternative treatment.
  • Improper treatment – If a doctor engages in a course of treatment that no other competent doctor would, and the patient is injured as a result, it may result in a malpractice claim. Improper treatment also refers to cases in which the doctor chooses the appropriate course of treatment, but administers it incorrectly.

Shocking Medical Malpractice Cases

Surgery Mistake

In 2007, an 82-year old patient underwent surgery at the Rhode Island Hospital to stop bleeding in her brain. In spite of the fact that a CAT scan done shortly before the surgery showed the bleed was on the left side of the patient’s head, the surgeon drilled the hole into the right side of her skull. The surgeon quickly realized the mistake, closed the h ole, and drilled into the other side of the patient’s head. The woman survived, but the surgeon made similar mistakes two other times within a calendar year, one of those patients dying.

Ignored Symptoms

In 2008, Esmin Green checked into an emergency room in New York. Although she displayed many symptoms, she was not taken seriously, and made to wait more than 24 hours to be seen by a doctor. Eventually, Ms. Green collapsed on the floor of the emergency room, where other patients report that ER employees saw her thrashing around, but did nothing. Ms. Green died on the floor of the emergency room.

Mistaken Amputation

In 1995, 52-year old Willie King was admitted to a Florida hospital to have a leg amputated due to a serious medical condition. Once in the operating room, the surgeon amputated the wrong leg. By the time someone realized a mistake had been made, it was too late, the damage was irreversible, and Mr. King ended up with a double amputation. The surgeon’s license was revoked for a mere 6 months, he was ordered to pay the patient $10,000, and the hospital paid the patient another $900,000.

Dental Malpractice

Dental malpractice is similar to medical malpractice, in that a health care professional has failed to meet an adequate standard of care. The only difference is that the case involves a dental professional rather than doctor or nurse. It is estimated that one out of every seven malpractice suits arises from a form of negligence or malpractice regarding dental care. Some of the most common types of dental errors include:

  • Failure to refer patient to a specialist
  • Failure to diagnose oral cancer or gum disease
  • Nerve damage caused by poor placement of dental implants
  • Incorrect use of dental anesthesia
  • Dental procedures that fail
  • Injuries or infections due to faulty crowns, implants, or bridges
  • Failure to perform a thorough exam

Most of these errors or injuries can lead to long term or serious damages such as loss of teeth, chronic pain, or loss of bone support.

Legal Malpractice

Malpractice is not limited to the medical or dental fields, as some people find themselves victims of malpractice when it comes to their legal professional. When a person hires a lawyer to represent him, he expects a professional and knowledgeable level of representation. If the lawyer fails to provide an adequate level of service, and the client is harmed as a result, the client may have the right to sue for legal malpractice.

If a client believes he has been inadequately represented, he should first discuss the issue with the attorney, and report the issue to the state bar association. The client may also hire another attorney to help repair the damage caused. When considering a legal malpractice case, a client should determine whether or not the outcome would have been the same if he had a different, competent lawyer.

Types of Legal Malpractice

Each case has different elements and outcomes, but some types of legal malpractice are more common than others. The majority of legal malpractice claims fall into one of three categories:

  1. Breach of fiduciary duty – if an attorney has a conflict of interest that interferes with his duty to his client, he may be in breach of his fiduciary duty. Such a conflict may include the representation of another client involved in the same legal matter, settling a case without obtaining the client’s approval, or lying about case information.
  2. Negligence – If an attorney fails to use the skill and education that is expected of a competent attorney, he may be acting negligently. Such acts may include missing deadlines, failing to adequately prepare for trial, or failing to follow the orders of the court.
  3. Breach of contract – If an attorney violates the terms of an agreement or contract made with the client, he is in breach of contract. Such a breach may include failing to perform adequate research as promised, or failing to consult expert witnesses as agreed.

Proving a Legal Malpractice Case

As with medical malpractice cases, a person must prove that malpractice occurred by showing:

  • The attorney was hired to competently represent the client
  • The attorney made a mistake or breached a contract
  • The mistake or breach caused the client financial or other harm
  • The client would have won the case if the attorney’s mistake or error had not existed

Statute of Limitations and Limits on Damages

The statute of limitations on malpractice varies by jurisdiction, as well as the type of malpractice alleged. For example, some states allow only one year in which to file a malpractice lawsuit, but that date may vary, depending on when the patient became aware there was a problem. Many jurisdictions also impose a limit to the monetary amount an individual can recover in a medical malpractice lawsuit. This is done for the purpose of keeping costs down, which may discourage medical and other professionals from practicing in their field.

Malpractice Lawyer

If an individual believes he is a victim of medical, dental, legal, or other professional malpractice, it is vital he seeks the help of an experienced malpractice lawyer. A malpractice lawsuit can be very complex, as expert witnesses will be consulted, complete records will be obtained, and discovery is likely to be prolonged. Malpractice lawyers know what is needed for a malpractice lawsuit to be successful.

Malpractice Insurance

Malpractice insurance is professional liability insurance that protects certain professionals, such as healthcare providers and attorneys, in the event a patient or client sues them for malpractice. In many states, medical professionals in particular, and often other professionals, are required to have malpractice insurance before being employed or working in the field. The reason for this is that malpractice insurance not only financially protects the professional being sued, but helps ensure there is money available to a patient or client who wins their malpractice lawsuit.

Medical malpractice is one of the most expensive types of insurance that can be purchased, the premiums rising exponentially according to the type of medicine practiced, the type of healthcare practitioner, and the amount of malpractice coverage. The vast majority of doctors and other healthcare professionals never need to use their malpractice insurance, but it is a necessary, and legally required, safety net.

Related Legal Terms and Issues

  • Contract – An agreement between two or more parties in which a promise is made to do or provide something in return for a valuable benefit.
  • Damages – A monetary award in compensation for a financial loss, loss of or damage to personal or real property, or an injury.
  • Fiduciary Duty – A legal duty to act solely in another individual’s interests.
  • Informed Consent – Permission granted by an individual who has been advised of, and understands, the risks and possible consequences, especially for medical treatment.
  • Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
  • Negligent – Failure to act as, or to exercise the level of care of, another reasonably prudent person would be expected to act.
  • Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
  • Representation – A statement or account made to someone to influence their actions or opinion.
  • Standard of Care – A degree of attention, caution, and prudence required of a professional with a duty of care; a degree of care that would be taken by another reasonable person in the same circumstances.
  • Statute of Limitations – A maximum length of time a party has to initiate legal proceedings from the date of an alleged offense or incident.
  • Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to make a determination in a civil matter.

Victim – A person who is injured, killed, or otherwise harmed as a result of a criminal act, accident, or other event.

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