Medical Malpractice In-Depth
When illness or injury forces you to see a physician or go to the hospital, you can generally be assured that a medical professional's years of experience and training will result in excellent treatment. But in truth, medical care providers are only human, and errors are always possible. Medical malpractice occurs when a negligent act or omission by a doctor or other medical professional results in damage or harm to a patient.

Negligence by a medical professional can include an error in diagnosis, treatment, or illness management. If such negligence results in injury to a patient, a legal case for medical malpractice can arise against:

The doctor, if his or her actions deviated from generally accepted standards of practice;
The hospital for improper care or inadequate training, such as problems with medications or sanitation;
Local, state or federal agencies that operate hospital facilities.
Medical malpractice laws are designed to protect patients' rights to pursue compensation if they are injured as a result of negligence. However, malpractice suits are often complex and costly to win. Therefore, if you believe you have a medical malpractice claim, it is important to consult with an attorney who will discuss your case with you, and help you determine your best options.

Legislation Affecting Malpractice Actions

Due in part to the power and resources of health care industry lobbyists, many states have passed legislation making it more difficult to bring and prevail in medical malpractice actions. In most states today, physicians and hospitals are protected by legal limits, called "caps," on the amount of damages and attorneys' fees that can be awarded in malpractice suits. Also, most states have a two-year time limit for filing malpractice actions, unless extraordinary circumstances affect the case.

One obstacle plaintiffs in many states may have to overcome before they can even file a malpractice action against a health care professional is the requirement that they file what is commonly known as a "certificate of merit." In order to file a certificate of merit, a plaintiff will first have to have an expert, usually another physician, review the relevant medical records and certify that the plaintiff's health care provider deviated from accepted medical practices, which resulted in injury to the plaintiff. The plaintiff's attorney then files the certificate of merit, which confirms that the attorney has consulted with a medical expert and that the plaintiff's action has merit.

"Respondeat Superior" and Independent Contractors

Medical malpractice can be committed by several types of health care professionals and, in a case where a hospital employee commits malpractice, the hospital itself may be held liable under the legal doctrine of "respondeat superior." Under this theory, an employer may be held liable for the negligent acts of its employee if the employee was acting within the scope of his or her employment when the negligence occurred. This doctrine is very important to plaintiffs in medical malpractice cases, because it helps ensure there will be a financially responsible party to compensate an injured plaintiff.

In some situations, commonly involving attending physicians working in hospitals, health care providers are considered independent contractors rather than employees, which makes the doctrine of "respondeat superior" inapplicable. What this means is, if a doctor or other health care professional an independent contractor, and commits malpractice while treating a patient in a hospital, the hospital cannot be held liable for the doctor's negligence. However, the hospital can be held liable for its own negligence, for example, in granting attending privileges to an unlicensed or incompetent physician.

Getting Legal Help in a Medical Malpractice Case

In general, there are no guarantees of medical results. An unanticipated or unsuccessful result from medical treatment or surgery does not, in itself, mean that medical malpractice has been committed. Nonetheless, if you believe you may have been the victim of medical malpractice, you should meet with an experienced attorney as soon as possible to discuss the facts of your case and receive a professional evaluation of your situation, especially in light of time limits for filing a medical malpractice lawsuit.



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