Medical Malpractice Lawsuit
A Medical malpractice lawsuit is a very complicated, expensive, and lengthy process.
The plaintiff’s attorney has to prove to the members of the jury the following elements:
1) the existence of the physician’s duty to the patient, usually based on establishing a physician-patient relationship
2) that the applicable standard of care for that particular area has been violated
3) that there have been damages requiring compensation
4) that there is a causal connection between the violation of that standard of care and the injury or harm that has been alleged in the complaint.
All of these elements have to be proven beyond a reasonable doubt. In some cases, the evidence is so overwhelming that the parties involved decide to come to a settlement out of court. This is done to diminish the cost of the whole process, and because it is accepted that the defendant has no way of proving his innocence. Most of these negotiations are handled between the attorneys and the insurance companies. Several states have created what it is called a Medical Review Panel. This panel consists of a group of attorneys and doctors representing both the plaintiff and the defendants, all under the guidance of an arbitrator. The cases are reviewed and discussed and a recommendation is given regarding the validity of the accusation. Although the plaintiff can pursue his case in a court of law after an unfavourable decision, the ruling of the panel weighs heavily in favour of the defendants. This review panel has shown to be an effective way to weed out frivolous lawsuits that can easily overburden the judicial system.
Legal Responsibility of Doctors in MedMal
- The medical man engages that he possesses a reasonable degree of skill, such as is ordinarily possessed by a profession generally.
- He engages to exercise that skill with reasonable care and diligence.
- He engages to exercise his best judgment, but is not responsible/or a mistake of judgment. Beyond this, the defendant is not responsible. The patient himself must be responsible for all else; if lie desires the highest degree of skill and care, he must secure it himself.
- It is a rule of law that a medical practitioner never insures the result.
"These are received in general as sound views, and such as will govern every enlightened court. There could scarcely be a greater absurdity, than to require physicians and surgeons to insure the result, when they can in no case control all parts of the treatment. Few serious cases are carried through a single day, and many not a single hour, without a violation of instructions, on the part of nurses and attendants."
Malpractice is almost exclusively charged on surgical practice. Except for medical treatment of diseases of the eye, we do not find a case of charged malpractice in the treatment of disease,distinctly so called. A case of alleged malpractice in the medical treatment of a diseased eye was tried in the October term of the Ohio Supreme Court, in 1857, which attracted much attention and occupied a long time.