Research published in 2016 identified medical errors as the third leading cause of preventable death in the United States. The estimated combined total of misdiagnoses, botched surgeries, hospital-acquired infections and giving the wrong drug or wrong dose of medication to a patient was then 251,000 lives ended too soon. That outpaced lung diseases, strokes and accidents.
Doctors, nurses and pharmacists continue making avoidable mistakes that kill patients or leave the individuals in their care in even worse health. Facilities that employ them continue failing to impose safety rules and ensure adequate supervision. Unfortunately, holding health care providers and their employers accountable for harming patients often proves difficult.
Judges and juries impose extremely high legal standards for proving medical malpractice. As attorneys who represent patients in Virginia and North Carolina, my colleagues and I welcome opportunities to help victims of medical malpractice, but we also want our clients to prepare themselves for what is sure to be a long, tough fight.
The first thing patients and families must understand is that simply not recovering does not provide grounds for filing a medical malpractice claim. Many conditions simply have no cure. Regardless of the type or quality of care someone receives, he or she may continue to decline or die. This is always sad, but it is not legally actionable.
Succeeding with a medical malpractice case requires presenting convincing proof of an existing health care relationship, proof of negligence or recklessness on the part of the health care provider or facility, proof that the unprofessional actions led directly to the harm suffered by the patient, and proof that the patient suffered significant, measurable harm.
Before briefly discussing each of the things a plaintiff in a medical malpractice case must prove, we want to stress that individual should be prepared to discuss all of these issues with an attorney from the very start of the case. At a minimum, a potential plaintiff should come to the first meeting with a Virginia or North Carolina medical malpractice lawyer with medical and prescription records, hospital and clinic bills, and the names and contact information for the health care professionals and medical facilities who might be named as defendants -- or, in civil law terms, respondents.
Establishing the Existence of a Care Relationship
A doctor, nurse, pharmacist or other health care provider can only commit malpractice on a patient who is under his or her care. Likewise, a hospital, clinic or pharmacy can only be responsible for the safety and well-being of a patient who sought health care in that facility.
Bills and medical records are essential to establishing a care relationship. Once such a relationship exists, the health care provider or facility owes the patient a duty of care.
Showing Negligence or Recklessness
Health care providers or facilities that fail to meet the medical standard of care also fail to meet their duty to a patient. A widely cited definition for the medical standard of care portrays it as “the level and type of care that a reasonably competent and skilled health care professional, with a similar background and in the same medical community, would have provided under the circumstances that led to the alleged malpractice.”
Establishing the medical standard of care almost always requires having an expert review the patient’s medical records and evaluate the actions of the health care provider named as a respondent in the malpractice case. One reason to hire a Virginia or North Carolina medical malpractice attorney is that the lawyer will know which experts to call on to receive a through review of the facts. The expert can also testify on behalf of the patient.
Showing That the Alleged Negligence or Recklessness Harmed the Patient
Proving that the health care provider or medical facility did not follow usual procedures will not be enough for a medical malpractice claim. A clear cause-and-effect connection must exist between the error and the death or worsened health condition. Making this connection is something else that the expert brought in by the medical malpractice attorney can do.
Showing That the Patient Suffered Significant Harm
Last, an alleged medical error must cause severe harm in order to merit recovery. If the patient does not die, he or she must have become disabled, lost a limb or healthy organ, or incurred massive bills. The lawyer who the patient or family hires will be able to place monetary values on the harm documented in bills and medical records. Those values will then be used as the requests for compensation and damages in the medical malpractice lawsuit.