Frequently Asked Questions about Medical Malpractice
Q: What is medical malpractice?
A: Medical malpractice is when the treatment given to a patient by a professional health care provider (such as a doctor, nurse, dentist, technician, hospital worker or hospital) deviates from the standard of care met by those with similar training and experience, causing harm to that patient.
Q: Does someone who is not satisfied with the results of his or her surgery have a malpractice case?
A: Not necessarily. In general, there are no guarantees of medical results, and unexpected or unsuccessful results do not always mean that negligence occurred. To succeed in a medical malpractice case, a plaintiff has to show an injury or damages that resulted from the doctor’s deviation from the appropriate standard of care.
Q: What should I do if I think I have a medical malpractice claim?
A: You should talk to a lawyer who specializes in such cases as soon as possible, telling him or her exactly what happened, with as much detail as you can, from the first visit with the doctor or other health care provider, through your last contact. If you can get your medical records ahead of time, bring them to your first meeting with the attorney. There are time limits governing how long an injured patient has to bring a medical malpractice claim, so time is of the essence.
Q: What is “informed consent?”
A: Although the specific definition of “informed consent” varies from state to state, it essentially means that a physician (or other medical provider) must tell a patient all of the potential benefits, risks and alternatives involved in any surgery, test, medical procedure or other course of treatment, and must obtain the patient’s written agreement before proceeding.
Q: Do I have a case against a doctor who prescribed me a drug for treatment, but failed to tell me it was part of an experimental program?
A: Physicians have a duty to tell patients if a treatment or protocol is experimental in nature, and patients have the right to refuse to participate in a drug trial or clinical research program. You may have grounds for an action against your doctor based on his or her failure to obtain your “informed consent” relative to this treatment.
Q: If the consent form I signed prior to a procedure is considered valid, can I recover any damages in a malpractice action against my doctor?
A: A consent form does not release a negligent physician from liability. If you can establish that your doctor deviated from the applicable standard of care when performing your procedure, and that you were injured as a result of that deviation, you may still be able to recover against him or her. If the procedure the physician performed went beyond the consent you gave, the doctor might even be liable for battery.
Q: How does a jury determine if a doctor’s actions were negligent?
A: A jury will consider the testimony and evidence provided by expert witnesses (usually other doctors), who will testify whether they believe your physician’s actions followed standard medical practices or fell below the accepted standard of care.
Q: What is a “Certificate of Merit?”
A: One obstacle plaintiffs in many states may have to overcome before they can even file a medical malpractice action against a health care professional is the requirement that they file what is commonly known as a “certificate of merit.” In order to file a certificate of merit, a plaintiff will first have to have an expert, usually another physician, review the relevant medical records and certify that the plaintiff’s health care provider deviated from accepted medical practices, and, as a result, the plaintiff was injured. The plaintiff’s attorney will then file the certificate of merit with the court to confirm that the attorney has consulted with a medical expert and that the plaintiff’s claims have merit.
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