Legal liability or responsibility results when there is professional negligence (malpractice). What many clients do not understand is that what they view as 'bad medicine' may not be malpractice. It is equally common for patients to assume that the medical care, or lack of it, was appropriate and that the injury they or their child received was inevitable.
Whenever there is an injury it is reasonable to have a professional evaluate the care that you received. A reputable law firm will carefully evaluate your case and give you an opinion at no cost to you. Good firms will not pursue cases unless they have merit. Many states require that the lawyer consult a physician, knowledgeable in the area of care, to ascertain if malpractice occurred. The best firms consult such experts on all cases whether required by the individual State or not. If a case is pursued, the party bringing the lawsuit is called a Plaintiff, the party(s) who are sued are called Defendant(s).
There are Standards of Care governing medical treatment. These standards dictate how a health care provider should act in a given situation. These standards are not written, but are known to the medical community. When a healthcare provider fails to conform to these standards it is called a Departure from the Standard of Care.
In Malpractice cases, negligence is medical care and treatment by a health care provider’s action or inaction that results in harm. Legally, an act (improper care) or omission (failing to perform the right test or treatment) that is not in accordance with the Standard of Care is a requirement for a malpractice action.
If there is a departure from the appropriate standards, the next part of establishing malpractice is the legal concept called Proximate Cause. The Law requires that there be a causal relationship between the wrong committed and the harm (injury). It is in the area of causation that most cancer cases and birth injury cases are defended. A health care provider may act improperly or fail to act when they should, but the harm was not related to the malpractice. An example, unrelated to medicine, involves an automobile going through an intersection:- The light is red. As the car runs the light, a pedestrian is about to cross the street. Had he crossed a moment later he would have been hit. Fortunately for him, he had not yet entered the crosswalk. Here, there was a bad act, yet no harm was caused.
- The light is green. As a car approaches the intersection, a pedestrian suddenly steps out from between two parked vans. The driver is unable to see him until the last second. In this case the driver caused the harm, but he was not negligent because even an alert, responsive driver would not have been able to stop.
- The light is red. As a car runs the light a pedestrian, rightly in the crosswalk, is struck and injured. Here there is both negligence and causation that entitles the victim to recovery.
In medical malpractice, the causal relationship is somewhat more complex. At times, either negligence or something else could be the true cause of the problem. It is here that the experience and background of the lawyer representing the injured party comes into play. The ability to obtain well credentialed experts who will testify in support of the case and the skill to cross-examine the expert on behalf of the defendant is the difference between success and failure. Any lawyer who does not spend substantially all of his or her practice in the area of medical negligence cannot hope to be in a position to properly represent a victim harmed by medical negligence.
The Law Firm of Collopy & Carlucci, P.C. practices nationwide, focusing on the representation of people who have been injured by medical negligence.
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