What are the four Legal elements of medical malpractice?


In the United States, a patient alleging Medical Malpractice must generally prove four elements or legal requirements to file a successful medical malpractice claim . These elements include:

1- The presence of a legal duty on the part of the doctor to provide care or treatment to the patient;

2- Violation of this duty due to non-compliance of the attending physician with professional standards;

3- The existence of a causal relationship between this breach of duty and the patient's injury; and

4- The existence of damages that stem from the damage so that the legal system can provide compensation.

The first element is the existence of a legal duty to the patient; this duty comes into play whenever a professional relationship is established between the patient and the healthcare provider. 

The general idea of legal duty is that in a civilized society, each person owes a duty of reasonable care to others. Extending this concept to a professional setting, where the doctor provides service to the patient, it is argued that the doctor owes the duty of reasonable professional care to the patient.

 In practice, this is the easiest element for the patient to establish, because such a duty is assumed mainly whenever the doctor undertakes to care for the patient. 

There is no duty where there is no doctor-patient relationship; but when a relationship is established, such as covering patients for a colleague, covering a clinic where indigent patients are treated, or providing emergency services to a roadside accident victim, a duty of reasonable care follows. 

In some cases, for public policy reasons related to the promotion of medical care for indigent patients, or encouraging the intervention of medical bystanders in the event of an accident, the liability of the attending physician may be limited by law, although a reasonable duty of care is established. 

The exception to the duty of care is when the doctor sees the patient as unprofessional, such as outside a hospital or clinic, or in some social settings. In such cases, a doctor-doctor relationship is not established, and there is no duty of reasonable medical care due.

To prove a violation of professional duty, the patient must invoke the concept of the level of care. While the exact definition of a "standard of care" can vary between jurisdictions and the concept can be elusive in its application, a standard of care generally refers to that care that a reasonable specialist in a similar situation would have provided to a patient. 

To prove a violation of the standard of professional care, the testimony of expert witnesses becomes necessary because a jury of ordinary people cannot understand the nuances of medical care. 

Some violations of the standard of care are so terrible that expert testimony is not needed; therefore, performing an operation on the wrong limb is a clear breach of duty that speaks for itself. 

This concept is captured in the legal term called Reis Ipsa locator (Latin means "the same thing speaks" but is often translated as "the thing speaks for itself"); in such cases, the legal procedure is shortened and the jury can proceed with the determination of damages because the breach of duty is clearly evident.

A breach of the standard of care in itself, apart from being a potential concern for the quality of care of the medical practitioner or the medical institution, is legally meaningless unless it causes injury to the patient. This " so what?"The question frames the third element of medical malpractice, which is causation. To prove this item, the injured plaintiff must show a direct relationship between the alleged misconduct and the subsequent injury. Alternatively, the patient can show a legally sufficient relationship between a breach of duty and harm; this concept is referred to as direct causality.

The fourth and final element of Medical Malpractice suits is called damages. 

A medical malpractice claim generally ends with the calculation of damages. Since monetary damages are easy to calculate and manage, courts hearing Medical Malpractice cases will determine financial damages to compensate the injured patient. 

Punitive damages are very rare in Medical Malpractice cases, and are reserved by the courts for particularly egregious conduct that society has a particular interest in deterring; examples can include willful alteration or destruction of medical records or sexual misconduct toward a patient. 

In the absence of a presentation of damages, the plaintiff cannot maintain the cause of action for medical negligence. Thus if the broken leg is treated using Closed Reduction and the application of the cast when the fracture pattern clearly called for open fixation, it may constitute negligence if the fracture continues to non-union or non-union, requiring multiple operations and increasing expenses. 

But if the fracture continues to heal quietly despite the wrong treatment and the patient begged for the injury from this treatment but without showing the actual damage, there will be nothing for the court to grant.

Medical Malpractice insurance

Medical malpractice insurance is a type of professional liability insurance that covers healthcare professionals against injury and medical negligence claims. Medical malpractice insurance policies are often implemented by doctors, nurses, physical therapists and other medical professionals as a means of protection against certain liability and damage claims. Sometimes referred to as Med arbitration model law or medical liability insurance, this type of policy can also protect a lawyer if the case goes to court.

We know that your job is to take care of your patients and customers. Our job is to provide the coverage you need. Insurance Agency GEICO, has teamed up with berksey, part of Berkshire Hathaway Specialty Insurance, to make insurance easy for you. Together, we are ready to help you with affordable coverage, same-day coverage, 24/7 access to your online account, and a team specializing in medical malpractice. Get a quick and free medical insurance quote today.

Who needs medical malpractice insurance coverage?

Medical malpractice insurance is essential for healthcare and fitness professionals. Perry offers malpractice insurance policies to the following:

  • Nurse Practitioners
  • Physical Therapists
  • Licensed Practical Nurses
  • Yoga Instructors
  • Personal Trainers
  • Physician Assistants
  • Nurse Anesthetists (CRNAs)
  • Registered Nurses
  • Optometrists
  • Nursing students and more

You've worked hard to build your reputation. Make sure you have the protection you need. Our team of trained berksy experts will be here when you need them.

How much does medical malpractice insurance cost?

The cost of medical malpractice insurance depends on things like:

  • Professional specialty
  • Years of experience
  • How often you work
  • Any previous claims filed against you

Negligence and malpractice in nursing

The terms negligence and malpractice are frequently used interchangeably. However, there is a difference in the two terms.

Negligence is:

  • A general term that denotes conduct lacking in due care;
  • Carelessness; and
  • A deviation from the standard of care that a reasonable person would use in a particular set of circumstances.

Anyone, including non-medical persons, can be held liable for negligence.

Malpractice is a more specific term that looks at the level of care as well as the professional status of the caregiver. To be responsible for misconduct, the person who makes the mistake must be a professional.

Malpractice is defined by the courts as the failure of a professional person to act in accordance with the prevailing professional standards, or the failure to foresee the consequences that a professional person, having the necessary skills and education, must foresee.

The same types of acts may form the basis for negligence or misconduct.

  • If performed by a non-professional person the result is negligence;
  • If performed by a professional person the acts could be the basis for a malpractice lawsuit.

In order to prove negligence or malpractice, the following elements must be established:

  • Duty owed the patient;
  • Breach of duty owed the patient;
  • Foreseeability;
  • Causation;
  • Injury; and
  • Damages.

There are different levels of responsibility or liability for malpractice.

  • An individual is accountable for acts of negligence personally committed;
  • The manager or supervisor may be held liable for the acts of the nurse if there has not been appropriate delegation of duties or adequate supervision;
  • An employer may be liable for the acts of its employees for failing to do the following:
    • hire staff who has the qualifications and skills to perform the necessary functions;
    • provide opportunities for the professional growth of the staff such as workshops and seminars;
    • provide adequate library services;
    • provide opportunities for exchange of ideas;
    • provide adequate and sufficient equipment and supplies and maintaining them; and
    • ensure that managers and supervisors carry out their duties competently.

How to prevent medical malpractice

As a doctor or healthcare practitioner, you always have a lot of work on your plate. Between caring for patients and running your practice, it can be difficult to keep up with the legal aspects of your business. However, it is important to understand the possible mistakes that could lead you to face a medical malpractice lawsuit. Keep these tips in mind to avoid responsibility and keep your patients happy.

1) Practice effective communication.

As someone with years of medical training, your understanding of medical concepts, terminology, and procedures may seem like second nature. It's not that simple for your patients. If you can learn to explain their health care concerns in layman's terms-without leaving out any basic details-you will have gained a valuable skill that can help you avoid legal disputes.

2) Establish good relationships.

Your ability to communicate with patients will largely depend on your relationship with them. Are you polite and patient with them? Do you listen to their questions and concerns? A healthy doctor-patient relationship will help build trust and avoid the feeling of uncertainty that can often lead to the patient feeling neglected.

3) Be thorough before, during, and after appointments.

Your relationship with the patient is not limited to the time spent on one appointment. It is important to review the charts before the appointment, taking note of any important details, and to follow up after any missed tests or appointments. Adhering to the protocol will help you in either case.

4) Set higher standards.

Consistent protocols and procedures are the key to making your practice run smoothly. Set a high bar with clear and strict policies when it comes to things like prescriptions, cancellations, complaints, security, and storing your medical information. You will also need to stay up-to-date with new developments in your specialty areas to ensure that your own practices are up-to-date.

5) Understand informed consent.

Many malpractice claims arise because the patient has not legally consented to the treatment or procedure. The patient should be fully aware of the possible risks and side effects of a particular procedure, as well as its purpose and benefits. Make sure you have the written and informed consent of the patient whenever necessary.

6) Keep complete records and documents.

Thorough documentation is always necessary for a malpractice claim. If litigation is back-headed, your medical records and charts can serve as evidence to support your claims. Your practice should always keep accurate, specific and up-to-date records of each visit.

If a medical malpractice lawsuit finds its way into your practice, there is one thing you should do as soon as possible: contact a reputable litigation attorney. Bradford Limited represented hundreds of cases at trial, many involving healthcare practitioners and physicians. Contact us and we will discuss your needs, analyze your options and provide you with a successful strategy. Our lawyers look forward to fighting alongside you.

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