How to Determine if you Have a Medical Malpractice Claim

How to Determine if you Have a Medical Malpractice Claim

If you’ve recently sought medical care and were harmed while receiving that care, you may be able to the receive damages for the harm that you suffered due to medical malpractice. Medical malpractice occurs when a patient is harmed by a medical professional (a doctor, nurse, or medical practitioner) who fails to competently perform his or her duties, including doctors who are guilty of misread mammograms and misdiagnosis of breast cancer. In order to prove medical malpractice, the patient must prove (1) the existence of a doctor-patient relationship, (2) that the doctor was negligent, (3) that the doctor’s negligence caused the injury and (4) that the injury led to specific damages. Below is an overview of the requirements for a medical malpractice claim and how to file it on time. Was there a Doctor-Patient Relationship? The first step in proving that there was medical malpractice is establishing that a doctor-patient relationship existed between the patient and the doctor he or she is suing.  In order to meet this requirement, the patient usually shows that he hired the doctor to give medical treatment or perform a procedure and that the doctor agreed to provide those services. Evidence of patient treatment, such as medical records or a prescription signed by the doctor will be sufficient to meet this requirement. Was the doctor negligent?            The next step is to prove that the doctor was negligent during the doctor-patient relationship. Specifically, the patient must show that the doctor was negligent in his diagnosis or treatment of the patient. Just because the patient is harmed during treatment does not mean that the doctor was negligent. The doctor is only negligent if he is not reasonably skillful and careful in his treatment of the patient. Most states, including Virginia, require that the patient present a medical expert that will testify as to whether the doctor was negligent or not. If the patient can prove that doctor was negligent, then he must prove that the doctor’s negligence caused the injury. Did the doctor’s negligence cause the injury? The third step is to prove that “more likely than not”, the doctor’s negligence caused the injury. This is an important requirement because many patients seek treatment for a pre-existing illness or condition. For example, a patient with leukemia has an oncologist test for tumors and the oncologist fails to diagnose the tumors. The patient must prove that if the oncologist had diagnosed the tumors, the patient would more likely than not have a better result (i.e. not developed a later stage of cancer or died). Did the injury lead to specific damages? The final step is that the patient must show that he was harmed by the doctor’s negligence. The harm suffered may be physical pain, mental anguish, additional medical bills for corrective treatment, or lost wages.  Medical Malpractice is important issue and requires the help of experienced legal counsel to gather all of the necessary patient information and to file the claim on time.  

William B. Kilduff


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