What constitutes medical malpractice and how medical malpractice is defined may differ from state to state in the United States. In general terms, medical malpractice occurs when a medical provider fails to provide care consistent with the required medical standard of care under the circumstances (often referred to as a breach of the standard of care).
In general, the standard of care may be defined as what a reasonably competent similar medical provider would provide under the same or similar circumstances in the same or similar geographic area (it would be unfair and unreasonable to hold a rural general practice doctor to the same standard of care in delivering a distressed baby that would apply to a high-risk specialist in a sophisticated medical facility such as a university-based medical center in an urban area).
5 Medical Malpractice Misperceptions
1. Perhaps the most common medical malpractice misperception held by many is that a bad outcome as a result of a medical procedure or other medical care is always due to medical malpractice. Many times a bad result may be a known risk of the procedure or treatment that may occur in the absence of medical negligence (the known risks of a medical procedure or care are required to be told to patients in advance in nonemergency situations so that the patients can make an informed decision regarding their own treatment). Many times it is necessary to retain a medical malpractice lawyer in your state who will obtain your medical records and have them reviewed by an appropriate expert to determine if medical negligence (medical malpractice) was the cause of your injuries (click here to visit our website to be connected with medical malpractice lawyers in your state).
2. Many people are astonished to discover after they file a medical malpractice claim against an allegedly negligent medical provider that the provider’s medical records do not contain relevant statements made by the provider to the patient, that the records state that certain information was provided to the patient when it was not, that the records state that certain discussions were held with the patient when they never happened, or that the records state that the patient was noncompliant with certain aspects of the treatment, which the patient knows to be false. Many people (including many patients) believe that their medical records will be accurate and objective but fail to take into consideration that the records are prepared and maintained by their medical providers without their input and that their medical providers have a personal, financial, and professional incentive to write the records in such a manner as best reflects upon their competence.
3. Medical malpractice victims are increasingly discovering that their primary care physicians (or other medical providers) who are not named as medical malpractice defendants and whose medical care provided to the victims had nothing to do with the medical negligence claims have nonetheless discussed the victims’ private and confidential medical history with the defense lawyers for the medical malpractice defendants (some states allow it, some states prohibit it, and some states have specific rules and requirements regarding such conversations). Patient should be aware of their medical providers’ views about medical malpractice claims: if a medical provider’s waiting room has pamphlets that espouse medical malpractice tort reform measures in your state or if they are active in efforts to restrict the rights of medical malpractice victims to be fairly compensated for their losses due to medical malpractice, then how will they behave when contacted by a medical malpractice defense lawyer to discuss your medical history?
4. Many people who bring a medical malpractice claim against a specified medical provider for a particular malpractice incident on a specific date believe that only the care provided (or the care not provided) by the negligent medical provider is relevant and that only the medical records related to the specific incident are subject to disclosure. In general, most (if not all) of the prior medical records of medical malpractice victims who bring claims against medical providers will be requested and provided to the defendant’s lawyers. For example, if a medical malpractice claim involves allegedly negligent surgery performed on a patient’s lumbar spine, all of the records from the patient’s primary care physician will be requested in order to determine if the patient had prior injuries, symptoms, or complaints related to the lumbar spine. Even records from treating psychologists or psychiatrists may be sought to determine if the patient’s present pain and suffering complaints regarding the negligently performed lumbar surgery are related to a pre-existing mental or emotional condition. Be aware that when you file a medical malpractice claim, you may be opening up much of your prior medical records and medical history to scrutiny by the malpractice defendant and the defense lawyers (you should discuss this issue thoroughly with your malpractice attorney during your initial meeting). Click here to find a medical malpractice lawyer in your state.
5. Even if your medical malpractice claim seems to you to be a “slam dunk,” most medical malpractice claims are not and defenses will be raised, even if they seem ludicrous to you. For example, in a recent case where an orthopedic surgeon operated on a patient’s wrong knee, the defendant orthopedic surgeon claimed that the “wrong knee” had a condition for which it would have required surgery in the future anyway. Discuss your expectations and concerns with your medical malpractice attorney.
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