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Medical Malpractice Basics

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Medical malpractice is negligence committed by a medical professional. Any person who assumes any part of the responsibility for a patient's medical and/or psychological well-being can be found guilty of medical malpractice. This includes nurses, pharmacists, psychologists, and specialists.

Certain aspects of the tort laws defining medical malpractice vary from state to state. In order to be guilty of medical malpractice, however, three circumstances must always exist.

First and most essential, the accused must have a duty to render services to the person claiming negligence. A patient-doctor relationship is an example of an indisputable obligation that constitutes duty. For example, a doctor has no obligation to render services if his neighbor's child falls from a tree. If that doctor voluntarily decides to assist in this matter, however, he can be held liable for any harm deemed to have resulted from his negligence.

Second, if duty is established, there must be a breach of that duty. It must be proven that the accused did not care for or treat the accuser with the skill, care, or speed that a reasonable peer professional would have done under the same or similar circumstances. In a patient-doctor relationship, for example, a physician has an indisputable obligation to render treatment and care consistent with the standard of his peer professionals. If a medical professional performs a procedure that is normally performed by a specialist or person of higher skill, and harm or damage results, the accused will be held to the standard of those who normally act in that capacity.

The third critical component of medical malpractice is harm. Negligence is conduct that causes injury or damage because it falls below a required standard. Medical negligence is established when a person suffers harm as a result of something that a medical professional did or did not do. The accuser must suffer a negative result that he/she would not have suffered if the medical professional had not exercised erroneous judgment.

Action cannot be brought against the medical professional if the alleged harm is accepted as a possibility for a given condition. Nor can action be brought because a disease progresses while a patient is in treatment. Further, most states prohibit medical malpractice claims based upon a doctor's promise for a guaranteed result for a suggested treatment. However, medical malpractice may be deemed present if a doctor attempts 'novel' or alternative treatments when there is a conventional treatment with a proven record of success.

There are some different types of medical malpractice. One of these is the failure to diagnose a patient's illness correctly or at all, where a correct diagnosis would have definitely led to a better outcome than the one that occurred. Another is improper treatment, meaning the doctor treats the patient in a different manner than any other competent doctor would have treated them, or if the doctor administers a correct treatment improperly. One more common type of medical malpractice is the failure to warn a patient of known risks, as medical professionals have a duty to warn their patient of the known risks associated with a procedure or course of treatment. This is called the duty of informed consent, commonly. If the patient had been properly informed of the risks, and would not have gone through with the procedure or course of treatment, then the doctor is liable for the medical malpractice if the patient had been injured by the specific procedure.