As medical malpractice lawyers, it often falls to us to help victims of medical malpractice obtain the compensation they need to move forward after an act of negligence or abuse leaves them seriously injured. Determining whether or not the circumstances surrounding your experience constitute malpractice or not is one of the most important things we do. In some cases, we find that a client has a claim for malpractice; in other cases, the client has accepted a certain amount of risk. Not every “bad result” is necessarily due to negligence or malpractice.
In order to make a claim for medical malpractice, you must prove that the doctor, surgeon, nurse or other health provider has made a mistake, and that the mistake made has caused you harm in some way. For example: abdominal surgery comes with the risk of a bowel perforation. If you have abdominal surgery and despite the surgeon doing everything properly, your bowel is perforated, there may not be any negligence. Similarly, if the surgeon sees the mistake and fixes it quickly and cleanly enough that you suffer no ill effects, you likely cannot pursue a malpractice claim.
The elements of negligence
Not all medical negligence cases are clear-cut; in fact, many of them are not, which is why hiring a skilled attorney who focuses on medical malpractice is so important. Your lawyer will then investigate your case to prove that the four elements of negligence were present:
- Standard of care (duty). Your doctor must treat you according to the standard of care that applies to their specialty and the kind of treatment they are providing. This is the standard by which the doctor’s conduct is judged, and varies depending on what kind of treatment or procedure the doctor is performing. Generally a doctor must act the way a reasonably skilled doctor in the same or similar profession would in the given circumstances.
- Breach – This occurs when the doctor violates, or breaches, the standard of care that he must follow in providing treatment. For example, the standard of care for an oncologist requires them to read films to see if cancer if present. If the oncologist fails to see cancer when it is on the film, the oncologist has breached the standard of care.
- Causation – Causation is the link between suffering harm (damages) and the breach of the standard of care. This link must exist for the doctor to be responsible for your injuries. In the example above there would be causation if the oncologist’s failure to detect the cancer led to it growing and spreading, eventually causing the patient’s death. The death would be attributable to the oncologist’s breach of the standard of care and would make the oncologist liable for the patient’s death.
- Damages – This is the harm suffered by the patient, which must be connected to the breach of the standard of care by a causation link. In the example above, if the oncologist failed to detect the cancer, but then shortly thereafter a different doctor did detect it and it was appropriately treated, there would be no damages even though there was a breach of the standard of care.
Each of the elements must be present in order to have a claim for medical malpractice. In the example above where the oncologist failed to detect the cancer but then a different doctor found it and it was treated appropriately there is no claim because there is no causation or damages, even though the doctor breached the standard of care. If you are unsure whether or not you are a victim of medical negligence, you want to seek the help of an experienced lawyer right away. Maryland has a statute of limitations for injury and medical malpractice claims, so time is of the essence. We invite you to visit Plaxen & Adler, P.A. to learn more about how we can help.
