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Malpractice and negligence: Know what it takes to make a case

When you're hurt as a patient who was relying on medical care provided by a professional, you may not be sure what to do. On one hand, if the injury was caused by negligence or malpractice, you can usually pursue a claim. On the other, you need to be cautious and understand if and when those mistakes were intentional, a breach of the standard of care or enough to result in a case.

Medical negligence happens when you don't receive the care you deserve based on carelessness or a deviation from the appropriate standard of care recognized by the medical community.

Malpractice is much more specific than negligence. It means that the person who committed an error was a professional. It also means that they breached the standard of care recognized by professionals of the same stature.

What do you need to do to prove malpractice or negligence?

To prove either malpractice or negligence, you will need to show that:

  • The medical provider or individual owed you a duty of care
  • The error or mistake should have been foreseen or able to have been prevented
  • There was a breach in the duty of care
  • You suffered an injury
  • You have damages

Here's an example. Jenny goes to the emergency room one day because of pain in her knee. She explains that she did not get hurt and that her knee has been aching badly for no known reason. The medical provider checks the knee and decides, based on a physical exam, that she has sprained it. She argues that it seems swollen and red, and she claims she feels something unusual when she bends it. They send her home without an X-ray or any other scan.

Jenny comes back a few days later in excruciating pain. A new doctor orders an X-ray, and it turns out that she has a growth behind her knee. She has to be rushed to surgery, and she ends up losing her leg.

In this case, it might be argued that the original doctor should have ordered an X-ray, especially when Jenny stated that she felt something when she bent her leg.

Who is liable when a medical provider commits malpractice or is negligent with a patient?

If an individual is hurt by a medical professional due to malpractice or negligence, then the professional may be held responsible for those actions. Sometimes, an employer will also be liable due to strict liability laws. This is something to discuss with your attorney if you intend to file a claim.

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