Medical negligence is one of most common, serious and sensitive issues rising in the present day world. While medical practices have to a great extent lost the privileged immunity from the legal action, patients who suffered have been vested with important rights against such negligent doctors or medial practices. While many people receive medical treatment without incident, thousands of patients are injured every year while receiving medical treatment from a doctor, nurse, anesthesiologist or other medical health professional. However, a legal claim does not necessarily arise simply because a surgery or other treatment did not go as expected. This handbook provides information about when a claim for medical malpractice may arise. If you believe that you have a valid claim for medical malpractice, consult a licensed attorney in your jurisdiction.
Legal Elements
For any claim, there are certain legal elements that the moving party must prove in order to establish a right to recovery. These are referred to as legal elements. A medical malpractice claim requires the patient to prove the following elements by a preponderance of the evidence:
- Duty
The patient must be able to show that a doctor-patient relationship existed at the time when the claim arose. This means that the patient has hired the doctor and the doctor has agreed to provide treatment to the patient. A patient cannot sue a doctor who gave someone else medical advice and the patient followed it.Medical malpractice claims are extremely fact specific. The patient must be able to show that the doctor had the duty to competently provide him or her with medical services. This element is not usually at issue in medical malpractice cases because it is usually clear that the medical professional was hired in this role and by implication was to provide competent services.
Damages
Even if the patient can prove that the healthcare professional did act negligently, he or she may still not be able to show a right to recover. The patient must also be able to show specific damages that he or she suffered as a result of the deviation from the standard of care.
Damages may include:
·Medical expenses incurred to fix the problem
·Lost work or earning capacity
·Pain and suffering
·Mental anguish
·Loss of consortium
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