Medical malpractice claims are a bit more complicated than many other types of negligence claims, due to complex medical malpractice statutes of limitations and the need for an expert affidavit to commence the action. Another challenge is that the standard of care is complicated, technical, and ever-evolving. A jury may have no trouble determining that it was negligent for the defendant in a car accident case to drive at 100 mph on a residential street, or to get behind the wheel with a high blood alcohol concentration.
Medical malpractice claims are based in negligence, like personal injury claims. To prove negligence, the plaintiff must show that:
- The defendant had a duty of care;
- The defendant breached (or failed to fulfill) that duty; and
- The failure to fulfill the duty of care caused the plaintiff’s injuries or other damages.
But it’s obviously not as easy for a juror to decide whether it was reasonable for a doctor not to run a particular test or to delay treatment of a condition. That’s why an affidavit from a qualified medical professional is required when you file a medical malpractice case. It’s also one of the reasons medical malpractice cases rely so heavily on expert reports and testimony.
What is Medical Malpractice?
Medical malpractice occurs when the medical professional or facility fails to meet the accepted standard of care in the medical community. This failure could take a variety of forms, including a failure to correctly diagnose (medical malpractice misdiagnosis) a medical condition, a harmful delay in diagnosis, and sub-standard treatment.
However, this element alone won’t necessarily lead to a successful medical malpractice claim.
Bad Outcomes Don’t Necessarily Mean Malpractice
Many of us have had bad experiences with doctors or medical facilities. And medical treatment is often unsuccessful, despite the physician’s best efforts. For example, a particular type of cancer may have only a 40% survival rate. In that situation, it’s entirely possible for the treating physician and all of the medical professionals involved to fulfill their obligations and provide adequate care, but still fail to save the patient.
The plaintiff in an Ohio medical malpractice case must show that the defendant provided services that fell below the accepted standard of care in the medical community. That’s complicated, because the accepted standard of care isn’t consistent across all types of presenting symptoms, conditions, and injuries. For example, the accepted standard of care for a particular type of head injury might be to immediately obtain a CT scan of the head. But that doesn’t mean that every patient who bumped their head or is experiencing headaches is subject to the same standard.
And the type of illness/injury and presenting symptoms are just two of the variables that help determine the appropriate course of action. For example, the same reported symptoms might trigger different testing protocols and precautions in an elderly person than a young one, or in a person with an underlying condition such as diabetes or heart disease than a healthy one.
To further complicate matters, those standards evolve as new information emerges and new testing and treatment options become available.
In short, medical experts who are up to date on the current state of knowledge and available options are necessary to assess whether the accepted standard of care was met and to explain to the judge and jury what that standard is and how the defendant fell short. It’s also vitally important to work with an Ohio medical malpractice lawyer who is experienced in working with medical experts to establish malpractice claims and convey important information in a way that is understandable and compelling to a jury.
You Must Show Damages in a Medical Malpractice Case
In the best case scenario, if you are concerned about your medical treatment, you’ll recognize that you aren’t getting adequate care or attention and move on to another physician. Or maybe you’ll just seek a second opinion out of an abundance of caution, because the medical condition is serious. When that happens, especially if you seek a second opinion right away, it’s possible that you’ll escape harm from the first provider’s malpractice.
In that scenario, you generally won’t be able to successfully pursue a medical malpractice claim against the provider, even though he or she was negligent. That’s because of the third prong of the negligence standard above: “The failure to fulfill the duty of care caused the plaintiff’s injuries or other damages.”
Though you may have experienced stress, frustration, worry, and perhaps some lost time to repeating medical appointments, there’s likely no compensable harm if another physician stepped in and successfully treated you. If your treatment was prolonged, you lost more work time, your recovery time increased, or your long-term effects were worsened by the delay, you may have a claim.
Plevin & Gallucci Helps Victims of Medical Malpractice
If you’ve been harmed by medical negligence, talking to a seasoned medical malpractice attorney can be your best next step. The attorneys at Plevin & Gallucci have been successfully representing injury victims, including victims of medical malpractice, for decades. We know how to build a medical malpractice case, and how to identify and work with the best experts for a particular case.
To schedule your free consultation, call 855-4PLEVIN or fill out the contact form on this page.
