What is medical malpractice?
Medical malpractice occurs as a result of a doctor improperly treating a medical condition, and when the improper treatment or negligence is the cause of a new or worse injury to the patient. This is also known as medical negligence.
What are the possible reasons for medical malpractice?
Medical Malpractice may result from: - A delay or failure in diagnosing a disease; or
- A surgical or anesthesia related mishap during an operation;
- A failure to gain the informed consent of the patient for an operation or surgical procedure; or
- A failure to properly treat a disease even if the correct diagnosis has been made
- A misuse of Prescription Drugs or a Medical Device.
What should the patient prove in order to succeed in a medical malpractice suit? - To establish medical negligence, an injured patient, the plaintiff, must prove:
- That there existed a duty owed by the health care professional to the patient;
- That there is an applicable standard of care, and the health care professional's deviation from that standard is deemed a breach of the duty owed to the patient;
- That there is a causal relationship between the deviation from the standard of care and the patient's injury; and
- That there is injury to the patient.
- The injured person has to prove that the physician’s conduct fell below a generally accepted standard and to establish the standard to be applied, a plaintiff must present the testimony of another medical expert, indicating the standard required and establishing that the physician has failed to meet this standard.
What is a ‘prescription error’?
A form of medical malpractice, an error or miscalculation from the side of the doctor is a prescription error. It may seriously affect the patient, putting his very life in jeopardy. Suppose, the prescription was a new medication for a patient who had no idea what the tablet or capsule looked like, or he/she received the wrong drug. The resultant injury from wrong drugs or overdoses could be catastrophic and form the basis of a suit for prescription error.
What is liability for defective medical devices?
When a person is injured as a result of medical treatment, the first assumption, many a times is that the physician has made a mistake. On further analysis the real culprit turns out to be the equipment or device used to treat the injured person, for which the manufacturer is liable. Not all devices are error free and due to some fatal flaw in the design or manufacture they, at times cause devastating impact on the patients. The liability chain is long in such cases encompassing the entire supply chain till it reaches the ultimate customer. This places the manufacturer on the top rung, then the wholesaler, and the retail store owner at the lowest rung. In between there could be assembling manufacturers or agents as well. This area of the law encompasses three legal theories: strict liability, breach of warranty, and negligence. What is to be proved to sustain in defective medical devise liability litigation?
The aggrieved consumer has to prove that the product was defective, the defect was there prior to the manufacturer releasing the product and it has caused him damages. |
