Personal injury and medical malpractice issues are inevitably going to be sensitive. After all, we go to see a doctor because we are unwell and wish to get better. Receiving negligent medical care leaves us feeling let down by not only the doctor, but also by the system.
Historically, the courts used the argument that receiving some kind of medical treatment was better than receiving no treatment at all, and had therefore been unwilling to listen to complaints of medical malpractice. Recently, however, the courts have been more willing to accept the notion of medical malpractice and personal injury.
What is the basis of a medical malpractice case?
Being a personal injury case, the foundation of a medical malpractice case is the same as that in any other personal injury case -- the victim of the malpractice must prove that a negligent act (or failure to act) by a medical professional resulted in harm.
The law of medical malpractice is a legal concept developed to protect patients against the negligence of the doctor, and concurrently the hospital that employs him/her. The victim, therefore, may also be able to bring a claim against the hospital where s/he was being treated, or even against the state.
“Informed Consent” in Medical Malpractice
Medical practitioners are required to inform patients of their course of treatment, and allow the patient to make an informed decision about whether or not they wish to receive such treatment. The patient has given the doctor “Informed consent” if they choose to proceed with the treatment.
The facets of informed consent are:
* The diagnosis (if known);
* The treatment;
* The likelihood the treatment is going to be successful;
* The risks associated with the treatment;
* The consequences of not having the treatment;
* Any alternatives to the chosen treatment – with a description of any risks and benefits associated with such alternative treatment method.
In times of emergency treatment, informed consent may not be needed. The courts will accept both express informed consent (for example, a signed informed consent form) and implied informed consent. Implied informed consent is when it is understood by the circumstances surrounding the procedure that informed consent has been given.
“Implied Consent:” What Does it Mean?
In addition to understanding the rationale behind why a medical practitioner is required to obtain informed consent from a patient, you the patient must also understand that informed consent does not mean there is no recourse. By agreeing to sign an informed consent form, the patient is agreeing to the procedure as it was explained. This does not clear the medical practitioner of responsibility, because if he/she is then negligent in the performance of that procedure, the patient can still have a claim against that medical practitioner so long as negligence is shown.
The Role of the “Certificate of Merit” in a Medical Malpractice Case
Essential to any medical malpractice case is the filing of a “certificate of merit”. This is a document confirming that the victim has a case against the medical practitioner in question. In order to be able to obtain a Certificate of Merit, the victim's lawyer is required to consult with another medical practitioner to determine whether the treatment the patient received did in fact diverge from what would normally be expected.
Medical malpractice cases differ from ordinary personal injury cases, and the certificate of merit provides yet another example of this. In ordinary personal injury cases, it is the job of the attorneys to prove to the court that their client either has a case or doesn’t have a case – and for the court to judge on such. Because of the Certificate of Merit, this process by the attorneys and the court is bypassed.
Medical Malpractice Statute of Limitations
State laws and the nature of the injury suffered will cause the amount of time you have to file a medical malpractice claim to vary. It is therefore essential that you consult with an attorney as soon as you possibly can.