The Elements in a Malpractice Case

Medical Malpractice

A medical malpractice claim involves several different elements. We will look into such elements in this post.

The Plaintiff

The plaintiff is the patient, an authorized person who follows up on behalf of the patient, or if the patient passed away, the administrator/executor of the estate of the patient. In legal terms, a plaintiff is an individual who brings a lawsuit against another within a court, the individual who creates the suit, or the individual who’s suing.

The defendant is the party being sued. In a malpractice case, it is the healthcare provider, which could be the nurse, doctor, therapist, etc. Even those individuals who follow orders could be legally responsible for neglectful acts.

The prevailing party is the one who succeeds in the lawsuit; it could be the defendant or plaintiff. If the defendant triumphs in the case, then the plaintiff won’t receive compensation.

Medical Malpractice
Medical Malpractice
  • The losing party is the one who’s beaten in the case.
  • The fact finder is the jury or judge.

The plaintiff needs to establish that the 4 fundamentals of the negligence tort existed so as to be successful in a malpractice claim:

  • A duty was owed by the hospital or healthcare provider.
  • A duty was violated – the hospital or healthcare provider didn’t follow the standard of care
  • The violation caused an injury – the violation was closely associated with the harm or injury

Damage – the patient endured significant damage, either emotional, physical or financial (pecuniary).

As it happens in every tort case, the legal representative or the plaintiff files a case in a law court. Prior to the beginning of the trial, the plaintiff and defendant need to share data by means of discovery; this could include documents requests, depositions, as well as interrogatories.

Both parties could, if they negotiate, reconcile out of the courtroom, and the case won’t proceed to trial. If they don’t agree, the lawsuit will go to trial.

The plaintiff needs to persuasively prove the negligence of the defendant. In nearly all trials, both the plaintiff and defendant will present professionals to clarify what standard care was needed. The jury should then mull over all the proof and choose which one is the most convincing.

A decision will be provided by the jury for the party that prevails. If it’s the plaintiff, then the judge will settle on damages.

The defeated party may proceed to a new court trial. In a few courts, if the plaintiff desires a bigger settlement, then they may go for “additur” (evaluate the damages and grant a bigger amount). If the defendant is not satisfied with a huge settlement, then they may go for “remittitur” (the court reduces the sum of damages). Either party could take a petition from the verdict.

Medical malpractice

Compensatory and Punitive Damages

The plaintiff could be awarded punitive and compensatory damages.

Compensatory damages could include financial damages, which includes life care expenses, lost earning capacity, as well as medical expenses. Losses in the past and future are usually assessed.

Compensatory damages could as well include non-financial damages, which evaluate the injury itself, psychological harm, and physical harm, for instance, losing one’s legs or vision, emotional distress, and extreme pain.

Punitive damages are only granted once the defendant is responsible for willful or malicious misconduct. This form of damages is a type of punishment; payment beyond actual damages.

The results of malpractice lawsuits on health care providers in the United States are widespread and could have a deep impact on the wellbeing of the medical professional, causing stress, professional displeasure, and emotional fatigue, a study showed.

The study (published in the JACS (Journal of the American College of Surgeons) on November 2011) found that cases were independently and strongly linked with career burnout and depression of the surgeon.

The authors stated that medical professionals who had experienced a recent malpractice case were more prone to be displeased with their professions, and would perhaps recommend their kids or others to pursue a non-medical/non-surgical career. How must doctors handle complaints?

The Medical Defence Union, the UK’s top medical defense association, provided tips for UK medical professionals on dealing with complaints:

  • Investigate each complaint methodically. Converse with the person complaining regarding what distresses them, and what results they’re expecting. Have a comprehensible plan prepared, and inform the plaintiff with regards to the investigation’s time frame, and when they must look forward to a response.
  • Invite the plaintiff(s) to speak to the personnel who are caught up in the complaint. Perhaps seek the assistance of a conciliator.
  • Take this seriously. Take measures as well to ensure they don’t happen again. Make certain your response is balanced and appropriate.
  • Remaining objective is very important. If possible, the reviewer must be directly caught up in the complaint, yet shouldn’t be the individual the plaintiff has an issue with. If fitting, look for an independent medical opinion (ensure the plaintiff is contented with that)
  • Apologize, be honest and open, and acknowledge errors as well as distress caused.
  • Organize a system which assesses and take lessons from plaintiffs. Make certain the plaintiff is informed in each action you’re taking.

If you are a victim of medical malpractice, know that there are different things you need to go through before you can submit your claim to a traditional court. Getting expert advice and support to an expert attorney would help a lot.