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Medical Malpractice. Do you have a case? (Part One)


We receive a lot of calls from our clients and potential clients on this topic. We get a lot of email inquiries as well. This is a particularly difficult topic, but we felt that some explanation on our blog would be helpful. Please read this and future articles, but don't hesitate to call for a more detailed and thorough analysis. First of all, medical malpractice is a subset of tort law. O.K., what is tort law you ask? It is the legalese term that describes personal injury cases based either in negligence or intentional acts such as a battery (hitting someone purposefully). If you fail to pay attention to a traffic signal and rear end someone in you car, that's negligence. If you take your taser in your office and zap someone then that is an intentional tort. Either way, you need an experienced personal injury lawyer to collect damages for you.

Medical malpractice may be a part of the overall tort or personal injury field of law, but it has a lot of its own rules and some serious pitfalls. First of all, not every bad medical result is an example of medical malpractice. Unfortunately, bad results happen even with the best care from the best doctors and in the best of hospitals. We are human beings and not every treatment or technique works. Sometimes a risk or complication takes place and those are not necessarily an example of malpractice.


Medical malpractice is a deviation or falling below the applicable standard of care by a physician, nurse, or hospital. Medical practitioners have standards of care that set or determine the appropriate type of diagnosis or treatment for a given medical condition; disease or injury. It varies greatly depending on the type of medical field and the medical situation. There are standards for podiatrists in how they address a foot injury, standards for orthopedists in how they handle a knee or shoulder injury. There are standards for urologists in dealing with a urinary tract infection. Standards exist for cardiologists, general practitioners, oncologists, etc., etc. These standards are not simple hard and fast rules. They are more like general guidelines and there is usually a fair amount of gray area interpretation on exactly what constitutes a standard and even more debate on what exactly is a deviation from the standard of care.

In order to proceed in a potential medical malpractice, you need to first consult with an experienced attorney who can evaluate the medical history of the patient, examine carefully the records of the diagnostic studies that were or were not performed and the treatment records. The next step is for the medical malpractice lawyer to have a neutral an independent physician examine the records. That physician has to have training and qualifications similar to the potential defendant. In medical malpractice cases before you can file a lawsuit or even send out a demand letter to try and settle a potential case, you first have to have a very detailed affidavit signed by an expert physician. Those affidavits cost a lot of money because the expert witness has to pour over hundreds and sometimes thousands of pages of medical records and he or she has to be willing to testify against the potential defendant. Fortunately for all of us, medical malpractice is a very rare occurrence. Our physicians are extremely well trained and dedicated to "doing the right thing" and treating their patients with great care. If, however, a question arises as to whether medical malpractice has taken place, the first step is to immediately contact an experienced medical malpractice lawyer.