Although state rules vary on medical malpractice, there are general principles that apply to most cases. Medical malpractice occurs when a medical or healthcare professional causes injury to a patient through negligence or omission. Here is an overview of the law and how to prove a claim.
The four D’s of medical malpractice are duty, dereliction (negligence or deviation from standard practice), damages, and direct cause.
To claim medical malpractice, there first must be a duty of care. This means an established doctor-patient relationship and that the patient injury occurred during the time the doctor was said to have the duty of care.
The doctor must have tended to the patient directly.
Dereliction occurs when the doctor partakes in an act of negligence or deviation from standard practice. In this case, the patient would not have been provided with the care and treatment expected of a competent physician.
This means dissatisfaction with a procedure cannot solely justify malpractice. Dereliction can be difficult to prove as medical professionals are often very reluctant to criticize their peer’s performance, let alone testify against them.
Through testimony, prescriptions, or medical records, the patient must prove that they have been physically or mentally harmed. The patient must also show that it is “more likely than not” the incompetency of the doctor that caused the injury, most times utilizing a medical expert.
The final claim that can sometimes be difficult to prove given the case is direct causation. There must be evidence that the resulting injury was the direct cause from the doctor’s breach of the duty of care.
Patients must claim medical malpractice 6 months to 2 years from the occurrence or discovery of the injury, depending on the state. Because the rules vary from state to state, it’s often essential to seek the help of a lawyer in medical malpractice cases. For help, schedule a consultation.