Medical malpractice or medical negligence is a branch of Tort law within the general law of negligence, which is characterized as a highly specialized focus on the law of negligence as it applies to hospitals, physicians, surgeons, nurses and other health professionals.
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Like many of the negligence based claims, the elements required to establish the cause of action begin with a duty of care that a health professional owes to their patient. From there, a breach of that standard of care owed must be found. Then, we consider the damages or bodily injury; this can be both physical and psychological in nature, but is not limited to those facets.
Lastly, causation in fact and causation in law are complex considerations of mixed fact and law.
Medical malpractice, in many forms, derives its foundation in any of the following three aspects of the patient and doctor relationship, adding an additional layer of requirements to the general formula.
- Informed Consent pre-operatively
- Breach of Standard of Care intra-operatively
- Breach of Standard of Care post-operatively
Claims may arise because physicians, while in the course of their treatment of patients, fail to keep them informed of the attending risks to a procedure during pre-operative discussions, and had adequate disclosure been made, a patient considering all the circumstances may not have agreed to the procedure.
On occasion, claims may arise when a surgeon, during a medical procedure, takes a course of action that no other surgeon in his sub-specialty would have, which causes harm to the patient. Sometimes, claims may arise because of a failure by health professionals and nurses to maintain reasonable vigilance of patients, post-operatively and that patient suffers harm after their surgery.
Expert Assessment Needed
Medical malpractice claims are complex and require expert assessment to establish breach of the standard of care and causation.
That said, there is never a guarantee of success as, in some cases, medical professionals and physicians cannot be found liable for a breach of the standard of care owed on the basis that any treatment/procedure is ineffective or unsuccessful. Most doctors and nurses act, according to all the information readily available to them, reasonably. In some cases, a pre-existing adverse health condition with debilitating effects may not respond to treatment or surgery, and that patient’s ensuing harm are naturally progressive effects of that condition and not contributed to by treatment/surgery. That said, the material facts may in some circumstances reveal unreasonable conduct and provide a sound basis where these issues are worthy of additional expert analysis.