Medical Malpractice: What It Is, And What It Isn’t

What Is Medical Malpractice?

In theory, medical malpractice is a relatively simple concept. Medical malpractice occurs if a health care provider gives care that is below the accepted “standard of care” in the medical profession, which then causes an injury or wrongful death. However, successfully proving a medical malpractice case in Cleveland is usually not a simple task. Medical malpractice can occur at any point of a medical professional’s care, including the doctor’s first assessment or diagnoses all the way up through the final discharge.

Medical malpractice can result from a negligent action taken by the medical practitioner, or by the practitioner’s negligent failure to take action. Common examples of medical malpractice include misdiagnosis or failure to diagnose a disease or medical condition, failure to provide appropriate treatment for a medical condition, or an unreasonable delay in treating a diagnosed medical condition. Medical malpractice lawsuits can be brought by the injured patient or their estate against any responsible licensed health care provider, including doctors, counselors, psychologists, and psychotherapists.

A medical malpractice case must be proven “by the greater weight of the evidence.” Proving malpractice by the greater weight of the evidence simply means proving that it is more likely than not that what the doctor did fell below the proper standard of care in the medical community. Similarly, a plaintiff may establish medical malpractice by proving by the greater weight of the evidence that a medical professional caused injury by failing to do something that a medical professional of ordinary skill, care, and diligence would have done under similar circumstances. Although the “greater weight of the evidence” standard is much more relaxed than the criminal “beyond a reasonable doubt” standard, successfully proving a medical malpractice case is still a very significant undertaking.

The “burden of proof,” “standard of care,” and “greater weight of the evidence” standards that we just discussed come into play at the end of the trial after the attorneys have given their closing arguments. After the jury has heard all of the evidence in a medical malpractice case, the judge will then provide written “jury instructions” for the jurors. These jury instructions will help to guide the jurors through their deliberations. The jury instructions will instruct the jury on the burden of proof, on the evidentiary standard, and on evaluating the credibility of the witnesses and their testimony. The jury instructions will also instruct the jury on what the standard of care was in the case, and on how to evaluate whether there was a breach of the standard of care that caused the injury in question. Finally, the jury instructions will instruct the jury on awarding “damages” (money) if the defendant is found to be liable.

Because of the complexity of determining what the standard of care was in a given medical malpractice case (and whether that standard was breached), you should contact a medical malpractice attorney if you believe that you or a loved one has been the victim of medical malpractice. Only a lawyer will be able to assess all of the potential claims against all of the potential defendants and give you a straightforward assessment about whether you have a good case that is capable of being settled or taken to trial.

What Is Not Medical Malpractice?

A medical care provider’s conduct or behavior does not result in a medical malpractice claim unless the provider gives care that falls below acceptable standards of care in the medical community and causes injury. I often receive calls from potential clients who had something relatively minor go wrong at the doctor’s office and there is no real injury, but the potential client is steaming mad about the doctor’s poor attitude or lack of compassion.

While I certainly sympathize with these individuals, a medical provider’s offensive behavior or bad bedside manner generally does not constitute medical malpractice. In other words, while a doctor’s rude or verbal misconduct may be a violation of ethical and licensing rules, rude or verbal misconduct does not fall into the malpractice category. Similarly, while a provider’s failure to give the proper advice and treatment is not good practice, it is not necessarily medical malpractice, especially if there is no resulting injury.

For example, an emergency room doctor who fails to properly diagnose your chest pain and then fails to admit you to the hospital has definitely delivered bad care. However, if you persisted and went on to another medical provider and got the care that you needed and avoided any injury, then there is probably no medical malpractice claim. Likewise, a doctor who verbally abuses you, or ignores you, or fails to return your calls may be reported to the appropriate licensing agencies, but there is probably not a medical malpractice claim, especially if there is no resulting injury.

Sometimes, a medical provider may give acceptable care, but a bad result occurs anyways. A bad result that comes about despite proper care is most likely not medical malpractice. Also, a patient will probably not be successful in proving medical malpractice if the patient:

gave informed consent and accepted an unavoidable or known risk,

  • contributed to his or her own harm,
  • failed to take action to minimize his or her harm, or
  • failed to disclose important information to the doctor.

In sum, each potential medical malpractice situation must be individually analyzed by a trained medical malpractice attorney and medical experts who are familiar with the appropriate standard of care for the specific case in question.

If you have questions about any of the legal issues raised in this blog, contact Dodosh Law Offices, LLC at 844-CLE-LAW1 (844-253-5291).  Or, you can email Attorney Nicholas Dodosh at nicholas@clevelandsinjurylawyer.com or fill out a contact form and Attorney Dodosh will get in touch with you.

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