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Medical Malpractice

Everything You Need to Know About Medical Malpractice

Sustaining an injury or losing a loved one as a result of medical malpractice can be a terrible thing to experience. It is usually a bitter pill to swallow because the injury or death could have been avoided if the responsible parties had done their jobs as they were supposed to.

In this article, we will discuss what you should know if you or your loved one was a victim of medical malpractice. We will discuss what your regular medical malpractice case looks like and how hiring a medical malpractice attorney can benefit your case.

What is medical malpractice?

Medical malpractice occurs when a hospital, doctor, or health care professional causes an injury or death to a patient. The injury or death could be as a result of a negligent act or an omission. The negligent act could be due to misdiagnosis, improper treatment, inadequate aftercare or healthcare management.

The relationship between patients and their health care providers is one of the most important relationships that exist. It is one of absolute trust in and dependence on the expertise of the caregiver.

The patient believes that the caregiver knows what they are doing and that every prescription given and care regimen recommended is the best possible for them. It can be traumatic to learn that your doctor was not giving you the proper treatment either because they didn’t know what they were doing or because they were negligent. Whichever reason it is, it is a very serious issue and one which the responsible party should be held liable for.

At Oshan and Associates, we make it our mission to ensure our team of experienced medical malpractice attorneys will do all it takes to hold the at fault party accountable and get you the justice you deserve.

Medical malpractice under the law

Before a claim can be legally termed a medical malpractice case, it must meet a number of requirements. They include the following:

The standard of care must have been violated

The law recognizes that certain medical standards are required to be met by medical professionals when handling their patients. The law also recognizes that these standards are regarded by medical professionals as being the acceptable medical care that patients should expect from their caregivers.

This standard is known as the standard of care. If it is determined that the health care provider did not meet this standard, or that the standard was violated in any way, then negligence may be established

Damage caused by the negligence

While the violation of the standard of care is a very valid starting point in a medical malpractice case, it is not enough in itself. You must also prove that the negligence caused an injury which you would not have had if your caregiver was not negligent.

Having an unpleasant experience or losing your loved one right after a visit to the doctor does not mean the doctor’s treatment caused the injury or death. This may be the case even when you are certain that the doctor violated the standard of care.

You must prove that the doctor’s violation of the standard of care is what caused your injury or the death of your loved one, otherwise, there will be no valid claim.

Significant injury or death resulted

Medical malpractice lawsuits are very expensive to pursue and they are usually quite slow and tasking. They frequently need testimony from many medical professionals and loads of hours spent in depositions.

For you to have a viable case, you have to show that your injuries were quite extensive. If your injuries were not extensive, the cost of pursuing the suit might not be worth the effort. For your medical malpractice claim to be viable, you must show that your injury resulted in any or all the following outcomes:

  • Disability
  • Loss of income
  • Unusual pain
  • Suffering and Hardship
  • Significant past and future medical bills. and future medical bills.

Common types of medical malpractice

Medical malpractice could be in any of the following forms:

  • Failure to diagnose
  • Misdiagnosis
  • Childbirth injuries
  • Failure to recognize symptoms
  • Failure to order proper testing
  • Misreading or ignoring laboratory results
  • Unnecessary surgery
  • Error in surgery or wrong-site surgery
  • Improper medication or dosage
  • Disregarding or not taking an appropriate patient history
  • Premature discharge
  • Poor follow-up or aftercare

Failure to diagnose and misdiagnosis often go hand in hand

Sometimes, you get diagnosed with an ailment when in fact your ailment is of a very different condition altogether. We can also say this is a failure to diagnose, as your doctor did not diagnose your actual ailment. In both cases, the result is that you were either treated inaccurately, or you got no treatment at all.

You should note that some ailments do not present in textbook ways. If the doctor was not particularly looking for that ailment, it would be possible to misinterpret the symptoms presented. Cases like this do not qualify as negligence.

An example is a scenario where a child presented with symptoms such as fever, loss of appetite and cough. The attending physician then prescribes a treatment regimen to take care of the symptoms presented. Unfortunately, the child does not get better after completion of the treatment regimen.

On a return visit, the attending physician examines the child and looks for further information. With the new information available, a treatment regimen is prescribed, which actually works. This scenario would not amount to negligence.

Negligence is established when the doctor failed to diagnose or made a wrong diagnosis when any other doctor with the same available information and level of training would have figured things out. Ailments that are frequently misdiagnosed include the following:


The Journal of Clinical Oncology says that cancer misdiagnoses occurs about 28 percent of the time and up to 44 percent for some types of cancer. The types of cancer which are most commonly misdiagnosed include lymphoma, breast cancer, sarcomas and melanoma. The misdiagnoses could be as a result of inadequate information, inadequate investigation, incomplete knowledge of medical history, or inadequate time for patient evaluation.

Heart attack

The way the symptoms of a heart attack present themselves vary based on many factors. Some people don’t even show symptoms at all. Some might present with a stomach upset, which they could attribute to a “little indigestion”. Some might present with a crushing chest pain and others might present with discomfort in the limbs.


The symptoms of depression are varied and can be quite similar to symptoms of other conditions such as bipolar disorder, anxiety disorders, post-traumatic stress disorder, or plain tiredness. Some of the symptoms people present with include feelings of sadness, anxiety, irritability, sleep problems, concentration issues, and sleep problems.

Celiac Disease

This is a disease in which the small intestine is hypersensitive to gluten, leading to difficulty in digesting food. Its symptoms commonly include abdominal pain, constipation, and diarrhoea. Other symptoms which present in people include headaches, joint pain, and even depression. It is often misdiagnosed as irritable bowel syndrome.

Lyme Disease

According to the 2015 study of the National Institute of Health on Lyme diseases, on average, people struggle with Lyme disease for a little over a year before they are accurately diagnosed. Lyme disease is a bacterial infection caused by a bite from a tick, and its symptoms could include muscle and joint pain, fever, stiffness and fatigue. These symptoms are quite like what will present when a person has the flu.

Childbirth Injuries

Childbirth injuries can be quite devastating physically and emotionally. After the months of joyfully preparing for the arrival of your bundle of joy, and conscientiously going for medical checkups to ensure that all is well, you just can’t imagine anything going wrong.

Then on the day of delivery, due to a fluke occurrence, everything goes horribly wrong. This can be a very heavy burden to carry financially, physically and emotionally. Common instances of medical negligence that can lead to childbirth injuries include:

  • Improper use of forceps
  • Shoulder dislocation, brachial plexus injuries
  • Hemorrhage of the mother during pregnancy or labor
  • Oxygen deprivation to the baby

Error in surgery

Having your surgeon make a critical error while you are under is something nobody dreams of, not even in nightmares. It can be very terrifying to consider. There is a wide variety of ways in which things can go wrong during a surgical procedure. They include:

  • Use of nonsterile instruments
  • Uncontrolled bleeding
  • Improper monitoring of vital signs during surgery
  • Inadequate care after surgery
  • Using procedures that are not medically safe or approved and causing injury as a result
  • Leaving medical apparatus or surgery tool inside a patient
  • Operating the wrong body part

Who can be held liable in a medical malpractice lawsuit?

You can hold a hospital directly liable for a medical malpractice lawsuit and you can also hold them vicariously liable for the conduct of their employees. Vicarious liability comes into play when the negligence was on the part of the employee.

Hospital negligence

A hospital is a corporation that is either a public or a private entity. Its medical staff is supposed to be composed of licensed and competent physicians and health care providers. Before hiring staff, it is the responsibility of the hospital to carry out due diligence and make reasonable inquiries into the applicants’ training and licensing. If the hospital fails to do this, it can be held liable under the “corporate negligence” provision of the law, if a member of staff injures a patient due to negligence.

Vicarious liability

When a hospital’s employee causes injuries or death by medical malpractice, the hospital can be held vicariously liable. This is a provision under the legal doctrine of “respondeat superior”.

In this provision, an employer may be held liable for the actions of its employee if the employee was acting within the scope of his or her employment when the medical malpractice occurred.

There are exceptions to this rule, however. If the at-fault health care provider was considered an independent contractor rather than a regular hospital employee, then the “respondeat superior” doctrine will not be applicable.

What do I need to do to prove a medical malpractice liability suit?

As earlier stated, the burden of proof in a medical malpractice case is on the plaintiff, which in this case, is you. You have to prove that your doctor or caregiver was negligent when treating you, and as a result of this negligence, you suffered a medical malpractice injury or lost your loved one.

It is usually a complicated process and you will need the expertise of a medical malpractice attorney and a medical professional. You will also need to establish the following:

Presence of a Doctor/Patient Relationship

This is the most important and also indisputably the easiest step. Proving a Doctor/Patient Relationship requires that you prove that the doctor agreed to provide you with a diagnosis or treatment. It is required by the court because it proves that the medical treatment was provided by a doctor who had an obligation to provide competent care.

The doctor was negligent

This is where you will need the expertise of a medical professional. The professional will testify on whether the standard of care was violated, and will also explain to the court what a competent doctor would have done in the same situation.

The doctor’s negligence was the cause of your injury or loss

Proving that the negligence was the cause of your injury might be a tad easier to prove than a medical malpractice death. With the help of your medical malpractice attorney, however, it is quite workable. The cause of death will have to be proven to be the result of negligence on the part of the caregiver.

In proving a medical malpractice injury, you must prove that your condition became worse or that you suffered more medical issues as a result of your care giver’s actions. The testimony of your medical professional will prove invaluable here.

You must present proof of damage

You will be required to present details of your suffering as a result of the negligence. This will include medical records, medical costs incurred, and wages lost as a result of your incapacity to work.

Is there a statute of limitations on medical malpractice cases?

The statute of limitations is a provision under the law which states that any lawsuit arising from an accident or injury must be filed within a certain time frame or the injured person’s claim will be barred and right to sue will be lost forever. The time limit is different across states, but it has a range of between 1 year to 6 years.

“Discovery of Harm”

The statute of limitations declares that personal injury claims or in this case, medical malpractice claim must be filed within a time frame. However, the time does not begin to run until the prospective plaintiff knows (or should have reasonably known) that they had fallen victim to harm.

An example is in surgical error. If the surgeon had left a surgical tool in the patient, the patient might not be aware of the error until a later time, when he or she required surgery again. In that case, the discovery will be made when the patient is opened up by another physician. It is at this point that the statute of limitations kicks in. So, even if the discovery was made years after the statute of limitations was supposed to have passed, the prospective plaintiff would still be able to file a claim.

You should also note that this provision only comes into play when the delay in discovery was under reasonable circumstances. So, if you began to feel discomfort shortly after your initial surgery but refused to seek medical treatment for a long time, your medical malpractice claim might be barred because of the statute of limitations.

Compensation in medical malpractice claims

Compensation in medical malpractice can be broken down into two areas. These are general damages and special damages.

The general damages are to compensate you for out of pocket expenses you incurred as a result of the medical malpractice. They include all losses you incurred from the date of the incident and any future expenses you might incur. They also include the following:

  • Loss of earnings both past and future
  • Change of accommodation
  • Adaptation to accommodation
  • The need for specialized care
  • Cost of travel
  • Medication and treatment costs
  • Need for specialist equipment

The special damages are to compensate you for all the pain and suffering you endured due to the medical malpractice. They are usually calculated by how much you were injured and how your quality of life was reduced as a result.

While no two medical malpractice cases are the same, settlement or verdicts for medical malpractice ranges and will be determined by the severity of the case.

How can a lawyer help you?

At Oshan and Associates, our team of medical malpractice attorney stand ready to ensure that you get justice for your pain and suffering. We listen to you with the highest level of compassion and pursue your case with utmost aggression.

Call us on 206-355-3880 or fill our client intake form to schedule a free, no-obligation consultation with our medical malpractice attorneys.