Four elements of medical malpractice explained

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Medical Malpractice

Those who think they may be a victim of medical malpractice may be confused about whether or not they have a case. This article discussed the foundational elements and provides an example of how these elements are applied.

Four elements of medical malpractice explained

Medical malpractice is an area of law that allows those who are injured by the negligent or reckless conduct of medical professionals to hold those professionals responsible for their wrongdoing. These cases can result in monetary awards to help cover the costs associated with any resulting injury.

Those who consider moving forward with a medical malpractice case can benefit from having a basic understanding of how these cases are structured. These cases generally require four elements:

Duty
Breach
Causation
Damage

These four elements make up the foundation for a medical malpractice case. Applying these elements to a current case can help to provide a better understanding.

The elements in real life: A med mal case example

A current case out of Florida provides a good example. In this case, a 19-month-old child got a hold of a remote control. Before the mother could remove the remote control from the child’s grasp, the child removed the battery and consumed it. The mother promptly called 911 and both parents accompanied the child to the emergency department. Once there, the parents were adamant about removing the battery as quickly as possible.

The physician assigned to the child allegedly discouraged this, stating the incident was akin to “a coin in her throat.” At the time, the child was suffering from severe burns in her esophagus from the battery. Once this was discovered, the child was rushed to surgery to remove the battery.

Poison control centers recommend the removal of lithium batteries within two hours. In this case, the battery was not removed until approximately five hours after it was consumed.

The parents are pursuing a medical malpractice claim in this matter. The elements could apply as follows:

Duty. This is generally an easy element to establish. The presence of a patient/doctor relationship is often sufficient to show that the physician had a duty to the patient.
Breach. Next, the parents will need to establish that this duty was breached, that the physician failed to fulfill his obligations to the patient. This often requires expert testimony as to the expected practices in similar situations.
Causation. It is also imperative to link the breach in duty to the injury. Here, one option would be for the parents to show that if the battery had been removed within the two-hour window the child would not have suffered from the burns.
Damage. Finally, the parents will need to show that damage was done. This can be shown in many ways. One example is the fact that this injury has resulted in approximately $400,000 in medical expenses for additional procedures needed to treat the burns that resulted from the extended period of time the battery was within the child’s esophagus.

In order to find success, victims generally need to tailor their case to establish these factors.

An example with real implications: What it means for you

Victims of misdiagnosis, surgical error, birth injury or other form of medical malpractice who suffer an injury from a medical professional can use this example to help determine if they have a case.

If you believe that you or a loved one has a case, it is wise to seek legal counsel. Gathering the needed evidence, finding experts to provide testimony and filing required court documents can be a labor intensive process. Your attorney can aid in this process, advocating for your rights and working to better ensure a more favorable outcome.

Medical Malpractice Frequently Asked Questions

How can I be assured of good medical care while in the hospital?

When you are in a hospital, demand specific information:

You and a trusted family member should always know the diagnosis and potential procedure.
Question each procedure before it is started.
Before taking medication, ask what it is for and who prescribed it.
Insist that you know the doctor who is in charge of your case overall.
Before going into the operating room, find out who they think you are, as well as what operation they expect to perform and where upon your body.
You and your family members should not be afraid to complain if you feel the patient is having a problem that is being ignored.
Repeat over and over again any allergies or reactions you may have.
If your instincts say something is wrong, demand to see the doctor in charge.
Never hesitate to ask for and obtain a second opinion.

How long does it take to determine whether I have a medical negligence case?

The investigation to determine whether a medical malpractice case exists can take several months and sometimes over a year. This is why it is very important that you consult with an attorney as soon as possible if you feel that you or a family member has been harmed by medical treatment. Before we can decide whether you have a case, we must obtain copies of all your relevant medical records and reports, including at times x-ray and MRI scans. Typically, these records are provided to an out-of-state medical provider in order to determine whether medical rules and standards have been broken. Sometimes we have to consult with doctors in several different medical specialties before we can make a decision on whether we can bring a case for you.

How much time do I have to bring a case against a medical provider, hospital or nursing home for harm caused to me or a family member?

Under the law, you generally have two years from the date of malpractice or from when you knew or should have known of the malpractice in which to bring a claim in a court of proper jurisdiction. The maximum amount of time for bringing a claim under any circumstances is three years from the date of malpractice. In order to determine the specific limitation that may apply in your case, you should consult with a lawyer as soon as possible. You can also request a 90-day automatic extension of time in which to file suit, which must be filed before the applicable limitation has expired.

How to best survive a Connecticut hospital stay?

To reduce problems during a Connecticut hospital stay, demand specific information. Some guidelines are mentioned below:
• You and a trusted family member should always know the diagnosis and potential procedures.
• Question each procedure that someone is to perform before it is started.
• Before taking medication, ask what it is for and who prescribed it.
• Insist that you know the doctor who is in charge of your case overall.
• Before going into the operating room, find out who they think you are, as well as what operation they expect to perform and where upon your body.
• You and your family members should not be afraid to complain if you feel the patient is having a problem that is being ignored.
• Repeat over and over again any allergies or reactions you may have.
• If your instincts say something is wrong, demand to see the doctor in charge.
• Never hesitate to ask for and obtain a second opinion.

If a patient tragically dies as a result of careless medical care and treatment, can a case still be brought?

Yes. In the tragic situation where careless medical care and treatment result in a patient’s death, a lawsuit can be brought by the administrator of the estate of the person who died, whether or not the person had a will.

What is required under the law in order to bring a case against a medical provider, hospital or nursing home for harm caused to me or a family member?

Under the law, in order to file a medical negligence claim against a medical provider, hospital or nursing home, we must obtain the written and signed opinion of a similar health care provider stating that there have been violations of the medical rules or standards in the care and treatment provided to a patient and the statement must also give a detailed basis for the opinions. The statement must be filed with the lawsuit. In addition, the attorney must also attach a certificate of probable cause that there is a good faith belief that grounds exist for a lawsuit.