Legal Issues
What is Medical Malpractice?
Dec 17, 2014 - 11:17:44 AM

( - Almost no medical procedure, medication, or therapy is entirely risk-free and so the practice of medicine relies on establishing informed consent, choosing a course of treatment where the potential benefits outweigh potential risks, and providing the best care possible for all patients. Of course, mistakes do happen and medical malpractice does occur, so how is malpractice defined and when do you know if you have a case against your physician, surgeon, or healthcare team?

Surgical Errors

According to a report from Johns Hopkins, every week in the United States, 20 patients undergo the wrong operation, 20 have the wrong part of their body operated on, and 39 patients have foreign objects left inside them after surgery. These are just a few of the 80,000 or so surgical errors that occurred between 1990 and 2010, and they account for just a fraction of the $1.3 billion in medical malpractice suits brought during those 20 years.

Medical Malpractice: What it is...

The issue of malpractice is complex, with the lines blurred between innovation, best practice, and standard protocol. Some cases are clearer cut than others, such as those where an obvious error has been made (like leaving surgical instruments inside a patient), or where a physician repeatedly prescribes inappropriate and harmful medications to patients. Other malpractice suits have resulted from off-label use of hardware or medications, as well as failure to diagnose infection or complications in good time after a procedure.

... and what it is not

In some cases a patient may wish to file a malpractice suit because they contracted an infection while in hospital, or have scarring from surgery. These cases are less simple as there are many factors involved in the development of an infection and in how an individual's body responds to procedures. As such, unless there is a clear indication that hygiene protocols were not followed, or aftercare standards were not met, these types of claims are unlikely to be successful.

The Legality of Medical Malpractice

The legal definition of medical malpractice is "professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient." The onus is on the patient bringing the lawsuit to prove that the actions of the physician or surgeon caused the injury or harm, and that it would not have occurred in the absence of such negligence.

Determining the Damages Awarded

Simply put, dissatisfaction alone is not enough to bring a successful medical malpractice lawsuit. The award given to a patient in a successful suit will usually be sufficient to recoup the costs they have incurred due to injury or harm, and reasonable coverage of anticipated costs, such as loss of earnings and livelihood, additional treatment costs, mobility aids and home modifications, and also psychological costs such as for ongoing anxiety and post-traumatic stress.

Test Cases, Class Actions, and Changing Protocols

Some suits may be test cases for a wider, class action lawsuit brought against a manufacturer, hospital or physician. Other cases may result in significantly higher damages being awarded than are required to cover incurred costs. These cases are a way of sending a stark message to medical professionals that standards of care must be maintained.

Successful medical malpractice suits can precipitate changes in standard procedures, such as using barcodes on surgical instruments to check them all back in before a patient is sewn up, or using ink to mark the part of a patient on which to operate. Often, patients or families brining medical malpractice suits do so in an attempt to prevent anyone else suffering the same harm or injury in the future.


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