Malpractice generally refers to misconduct of a medical or legal professional that results in injury to a patient or client. Attorney clients and medical patients place a high degree of trust in the hands of highly trained individuals and are thus subject to a high risk of negligence. Malpractice law addresses this risk and protects patients and clients from the costs of substandard service. Malpractice law is also important to hold high-level professionals in these fields accountable when they are intentionally negligent. All medical and legal professionals are held to a certain standard of care recognized within their respective professions. If a medical or legal professional provides services or treatment that falls below this standard, they open themselves up to the possibility of a malpractice lawsuit.
In this section of FreeAdvice you will find an abundance of information and answers to your questions about medical malpractice, hospital malpractice, legal malpractice, nursing home abuse and neglect, and malpractice attorneys.
Medical malpractice occurs when a health care provider fails to follow the governing standard of care in his or her area of medicine, and as a result of this act or omission, a patient is injured. Many different types of medical providers can be held liable for medical malpractice, including, but not limited to: doctors, nurses, dentists, physical therapists, psychiatrists, and physicians. To prove that there has been medical malpractice, an injured patient must show that the health care provider is liable, that the provider gave the patient substandard care, and that this substandard care was the cause of the patient’s injury.
To prove liability, a patient must first show that a doctor-patient relationship was formed between the patient and care provider. This is usually shown fairly easily, as any visit to a medical provider’s office followed by a consultation can legitimize this relationship.
On the other hand, to show that the health care provider gave a patient substandard care is a more difficult task. To meet the medical standard of care, a provider must give the level of care that a doctor in the same or similar area of medicine would have in the same situation. This means that as long as the care provider acts as a reasonable medical professional in their area would, this treatment falls within the appropriate standard of care. Having said this, even reasonable doctors can make reasonable errors. Malpractice only occurs when these errors are unreasonable, and fall beneath the accepted standard of care.
Take for example that a patient goes into surgery, fully aware and informed that complications may arise. After the surgery, the patient’s injury does not heal as expected. While the patient may be upset that the surgery did not result in a satisfactory outcome, this may have been an inherent risk of that particular surgery, and does not necessarily mean the surgeon gave the patient substandard care. On the other hand, suppose the patient returns after the surgery for X-rays to determine why the injury wasn’t healing properly, and the X-rays show that the surgeon left an instrument inside the patient’s body. This is an example, albeit an extreme one, of a medical provider administering treatment that falls beneath the standard of care in his or her area of medicine.
Finally, in order to prove medical malpractice, a patient must show that the substandard care caused the patient injury. For example, suppose a patient goes in sick to a doctor. The doctor fails to undertake all of the appropriate tests, resulting in a misdiagnosis of the patient’s illness. Fortunately, the patient makes a full recovery despite the misdiagnosis. While the doctor may have provided substandard care, a patient in this situation would not win a medical malpractice lawsuit because there was no resulted injury.
As with medical malpractice, hospital malpractice occurs when a hospital staff member gives substandard treatment that results in injury to a patient. However, the difference here is that the hospital is only on the hook for malpractice if an employee of the hospital provides substandard care. While a number of different types of health care professionals work in any given hospital, a majority of them are independent contractors, who are not legally considered employees of that hospital. Whether the medical provider is an independent contractor or an employee makes a difference for the purposes of hospital malpractice liability. Employees of a hospital generally include nurses, technicians, pharmacists and paramedics, whereas doctors and surgeons tend to be independent contractors.
Hospital malpractice can occur in a number of ways. Examples of hospital malpractice include: a hospital pharmacist gives a patient the wrong prescription; a nurse gives a patient the wrong injection; a hospital paramedic gives a patient the wrong intravenous solution on the way to the hospital. Hospital malpractice can also result from the use of faulty medical equipment, or if infection results from uncleanliness due to poor sanitation practices.
It is important to know that if a doctor, surgeon, or other independent contractor at a hospital commits medical malpractice, the patient still has a remedy for injuries – he or she will just have to file an action against the doctor or surgeon, and not the hospital.
Similar to other types of malpractice, legal malpractice is focused on whether an attorney provided his or her client with services that fall below the relevant standard of care. The relevant standard of care here is determined based on the level of service reasonable attorneys in the same or similar field or area of expertise would have provided. To prove a legal malpractice case, a client must show that an attorney-client relationship was formed. They will also have to prove that their attorney failed to provide competent legal services through either negligence, breach of contract, or breach of fiduciary duty. In addition, a successful claim must show that the client was injured as a direct result of the attorney’s substandard service.
Some examples of negligent attorney behavior may include: failure to bring relevant objections that could have kept pertinent evidence out of court; failure to meet filing deadlines; or failure to keep client funds in a separate account. These are all examples of an attorney acting beneath the standard of professional operations in his or her field.
In a malpractice suit for attorney negligence, it is not enough to merely prove that negligence occurred; a client must also show that the attorney’s negligence caused injury. For example, if an attorney missed an important filing deadline, but it ended up having no effect on the case, the client will not have been injured, and is unlikely to prevail in a legal malpractice claim.
When a trial is lost as a direct result of a lawyer’s negligence, it can be considered legal malpractice. Here, a client must be able to show that, had it not been for the attorney’s actions, his or her case would have turned out in their favor. For instance, an attorney failed to use an available evidentiary objection to keep a bloody knife from coming in as evidence during a criminal trial. The fingerprints on the knife were smeared and the item is a questionable piece of evidence, but because of the attorney’s failure to object to its admission as evidence, it sways the jury to convict the defendant. The defendant is found guilty. If the defendant can show that he or she lost the trial as a result of the knife coming into evidence, this may be enough to prove legal malpractice--provided that any reasonable lawyer in the same situation would have objected to the admission. However, suppose it comes out that there was also evidence of the defendant’s bloody fingerprints and footprints all over the crime scene and the attorney could not have kept this from coming in at trial. In this case, it is unlikely that the defendant will be able to show that the attorney’s failure to keep the knife out of evidence was the reason the defendant was found guilty; he or she will therefore not likely have a basis for a medical malpractice case.
Other bases for a legal malpractice suit include breach of contract and breach of fiduciary duty. A breach of contract is when an attorney goes against one of the terms provided in the initial contract a client signs when the attorney agrees to represent them. Breach of fiduciary duty is a bit more complex. All attorneys owe fiduciary duties to their clients, meaning that they must put their client’s interest before their own. For example, if an attorney made a tactical decision in a case that they knew would help their own career, but hurt the outcome of their client’s case, this is a breach of fiduciary duty.
It is also important to remember that like medical providers, attorneys are allowed to make good-faith, reasonable errors in judgment when doing their job. This means that if an attorney makes a tactical decision that he or she believes--in good faith--will benefit a client’s case, the attorney did not act below a reasonable standard of care, even if the decision didn’t turn out to be the best one.
Cases of nursing home abuse or elder neglect arise when an elder resident of a home is subject to the bad acts or omissions of the nursing home staff. Nursing home abuse and neglect can cause severe injury or death in extreme cases. Like medical providers, hospitals, and legal professionals, nursing homes are subject to a reasonable standard of service. If a caretaker or other staff member of a nursing home provides an elder resident with care that is below this reasonable standard, the nursing home may be liable for these actions.
Nursing home abuse can include physical, emotional, sexual, or financial abuse. Physical abuse of a nursing home resident includes unnecessary physical pain or restraint measures. It can also include misusing the resident’s drugs in a way that harms that resident. Emotional abuse can be even more damaging to an elderly person, when a caretaker uses abusive language or manipulates them in a way that is detrimental to the resident’s mental state, the abuse should be taken as seriously as if it were physical. Sexual abuse of a nursing home resident includes physical sexual abuse, but can also include other acts, such as showing a resident pornographic material. Financial abuse of a resident, the most prevalent type of nursing home abuse, is generally seen in situations where a caretaker takes advantage of the relationship he or she has built with a resident, and manipulates the elderly individual into giving them money. Life savings have been lost through financial abuse of the elderly.
Nursing home neglect is similar to abuse; however, instead of a tortious act that causes the resident injury, it is the omission--or failure to act--that causes harm. In some cases, nursing home neglect may not be intentional: the home may be understaffed or undertrained, which can lead to caretakers neglecting the residents. The most common type of nursing home neglect is emotional neglect. Emotional neglect is often seen in cases where an elderly resident is left for extended periods of time in isolation. Elderly people, especially those in nursing homes, tend to be susceptible to depression; being inappropriately reprimanded or made to feel inferior can lead to social withdrawal from daily activities they once enjoyed. If a resident withdrawals and their caretaker ignores it, it can be considered emotional neglect and may be grounds for a malpractice lawsuit.
Other types of nursing home neglect include medical neglect, basic needs neglect, or personal hygiene neglect. Basic needs neglect is when a nursing home fails to provide a resident with proper nutrition, appropriate air temperature, or an otherwise safe and clean environment. Medical neglect of an elderly resident can occur when a nursing home staff fails to properly administer medication, fails to seek necessary medical treatment for a patient in need, or fails to keep a bed-ridden resident from getting bedsores. Many nursing homes offer assistance to residents who have trouble maintaining personal hygiene on their own; when a nursing home provides this type of care, but fails to properly assist in these tasks, it can also be a form of elder neglect.
The Malpractice Law section of FreeAdvice is filled with useful articles and answers to FAQs, discussions, Q&A’s, and other resources on the various types of malpractice. To learn more about malpractice, just click any of the relevant links on this page. If you are searching for an experienced attorney to help you determine if you have a case or answer questions about your specific situation, click here for a malpractice attorney in your area.
Malpractice Law contains: 180 Articles, 70 FAQs
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