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Medical Malpractice

When a patient is harmed by treatment, or lack of treatment by a physician or hospital as a result of negligence, the patient is entitled in law to bring a lawsuit against the physician or institution. If the court finds that indeed there was negligence and harm has resulted from that negligence, it can make a money award as compensation for suffering, lost income and out-of-pocket expenses.

The difficulty in bringing a medical malpractice claim, more precisely called a medical negligence claim, is to prove that the action of the healthcare provider was negligent. Negligence is defined as falling below the standard care which has been set by the community and courts, thereby causing loss. The standard of care for physicians is that of “an ordinary prudent physician in the same circumstances”. In other words, if a majority of physicians would treat a complaint or symptom in a certain manner, then this treatment is the standard care against which to measure the treatment of a specific doctor or hospital.

Simply because the result of a procedure, or lack of procedure, turned out unsatisfactory (or even badly) does not necessarily mean that the physician or hospital is negligent. The courts recognize that there may be several treatment options and they allow the physician or hospital to use “clinical judgment” in making decisions. One cannot usually succeed in an action where the physician has made a clinical judgment that turned out badly. There are also circumstances where the courts do not fault physicians for making “excusable errors” which may result in ” recognized complications” of the procedure.

It is important to remember that causation is an important issue in most medical negligence lawsuits. That means that the harm that has happened to one must be provably connected to treatment by the physician or hospital. If the harm was caused by a different source, or was probably not cause by the treatment, then the medical negligence action will fail.

Although medical negligence lawsuits should be undertaken with great caution, the cases where hospitals, physicians or other healthcare providers make genuine negligent mistakes causing irreparable harm should definitely be pursued.

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