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Do I Have a Medical Malpractice Case?

UPDATED: May 24, 2013

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It is thought that between 5 and 10 percent of health care patients experience some kind of medical malpractice each year. But few will win in court due to common pitfalls of malpractice law.

Medical malpractice is a costly and risky field - defendants are backed by insurance companies who provide financial and legal support. However, it is possible to construct a winning medical malpractice case. Below are the elements involved in a case:

You Must First Prove Negligence

The first duty is to prove negligence. Whether it stems from an action or a failure to act by your doctor, negligence is conduct that grossly deviates from the standard of care required by law. For example, the failure of a doctor to order the proper tests or incorrect treatment of a diagnosed disease may be considered malpractice.

However, doctors are not responsible for the outcomes of all medical situations that turn out badly. Hence, many winning malpractice cases stem from unexpected results of routine procedures or deaths from seemingly mundane courses of treatment. Common complaints brought forward in medical malpractice litigation include cancer misdiagnosis, birth and c-section complications, plastic surgery malpractice, anesthesia accidents and prescription errors.

You Must Prove an Injury Was Sustained

Another guideline is an injury that meets the criteria of being demonstrable, serious and lingering. If a patient is merely sick of suffering from headaches following treatments, difficult malpractice litigation will likely follow. However, if those headaches are recurring, debilitating and demonstrable, there may be a case. A demonstrable injury makes the difference between hearsay and actual evidence – and overwhelming evidence is at the core of any successful litigation.

It is important to obtain copies of medical records before pursuing a case and be prepared to present in proving malpractice. The medical facility may try to make this difficult, but a patient has legal rights to this personal information. Treatment records are at the core of any successful medical malpractice case. A lawyer can also help you obtain these records if necessary.

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