Who Should Seek a Medical Malpractice Lawsuit?

By Pfree2014CC BY-SA 4.0 , via Wikimedia Commons

Preventable medical errors are the third highest cause of death in the United States, behind only cancer and heart disease.  As recent as 2014, the United States Senate held hearings on preventable medical errors because of the escalation of this problem.  Preventable medical errors are estimated to cause in excess of 400,000 deaths annually in the United States at a cost of $1 trillion.  In addition to the roughly 1,000 preventable medical error deaths daily, it is estimated that 10,000 preventable serious complications cases occur per day in the U.S.

We, at Decof, Decof & Barry, strive to identify and pursue only those cases which have merit. Meritorious cases must be distinguished from incidents where patients suffer injuries or death as a result of unfortunate, but unpreventable circumstances.  For example, patients who undergo surgery sometimes contract an infection even though they receive excellent care. In contrast, infections are sometimes caused by negligent care, i.e. unsterile environments or instruments.  Although the injury is the same in these two scenarios, one is probably actionable and one is probably not.  Similarly, some patients who undergo lifesaving and invasive procedures, such as open heart surgery, will not survive despite receiving excellent care.  In contrast, surgeons sometimes incorrectly perform surgeries, thereby causing patients to die.  The latter scenario is probably actionable.

The elements of a successful medical malpractice claim are negligence, causation and damages.

With regard to the negligence element, the law requires physicians to exercise the standard of care of a reasonably competent physician in the field of medicine that he or she practices in.  It might come as a surprise that we are not entitled to the most highly skilled doctor, only one that is reasonably competent.  However, negligence is present when a physician does not exercise reasonable care.  A reasonably competent physician will review, understand and act upon blood lab results.  Similarly, a reasonably competent physician will understand that he or she must consider and rule out heart attack in a patient who presents to the emergency department with chest pain radiating into the jaw and down the left arm.  Failure to do so constitutes negligence in almost all circumstances.  These are just a few examples as the factual patterns are limitless.

With regard to the causation element, the law requires that a physician’s negligence must be a proximate cause of the patient’s injuries or death. For example, some lawsuits involve a physician’s delay in diagnosing a patient’s cancer.  A delay in diagnosing cancer for several months or years which allows a patient’s cancer to progress from stage I to stage IV terminal cancer will likely satisfy the causation element.  In other words, but for the delay, the patient would have been diagnosed at stage I or II and likely cured with treatment.

Finally, plaintiffs who bring medical malpractice lawsuits must prove their damages.  Types of damages include wrongful death, and lost earning capacity and future medical expenses for a patient who is not fatally injured.

If you believe that you or a family member may have been the victim of medical malpractice, it is important to seek an attorney as soon as possible to investigate whether your circumstances meet the legal criteria and constitute a case which can be pursued.

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