The dedicated legal team of Caputo & Mariotti

What to Know About Medical Malpractice

April 4, 2019

What is Medical Malpractice?

Medical malpractice results when a medical provider fails to act according to the standards of care in his profession and that action or failure to act within those standards of care causes harm to the patient.

What Does the Standard of Care Mean?

This concept refers to the degree of care and skill that an average, qualified professional would provide to a patient who has sought care for similar symptoms and conditions.

There are many possibilities that may result in failure of the standards of care including:

  • A failure to fully advise a patient of the risks involved.
  • Failure to diagnose or misdiagnose a condition.
  • Delay in diagnosing a disease or condition.
  • Performing an inappropriate operation.
  • Failure to perform adequate testing.
  • Failure to understand testing results.
  • Surgery on the wrong part of the patient’s body.
  • Post-operative mismanagement.

It could even extend to nurses and pharmacists giving the wrong medication or improper dosages of messages.

The Difference in Medical Malpractice Cases compared to other negligence cases:

In any action alleging that a professional deviated from a professional standard, the attorney or plaintiff must file a pre-certification with the court stating that an appropriately licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work fell outside the acceptable professional standards and that such conduct was a cause in bringing about the harm.

How Does that Change the Handling of a Case?

This requirement significantly increases the amount of resources required in evaluating and starting a case. Because the expert signing the certificate must be the same expert who will actually testify and be qualified to testify at trial and it requires a separate certificate for each professional against whom a claim is brought and for each claim asserted.

Each professional expert can be very expensive. As a result, we must be extremely careful that the damages in a case justify the expected costs, for both the client’s sake and ours.

Also, the expert must:

  • possess an unrestricted physician license in any state or the District of Columbia.
  • be engaged in the practice or retired therefrom within five years.
  • be familiar with the applicable standard of care for the specific issue.
  • practice in the same sub specialty or similar sub specialty with the same standard of care.
  • be board certified if the defendant is the same.

As with any case, the gathering and preservation of evidence is most important. And with Medical Malpractice cases, it is very important to obtain copies of the medical file early to prevent the changing of medical records, the deletion of medical records, and additions and subtractions to medical records. Luckily though, the Medical Care Availability and Reduction of Error Act allows for juries to make presumptions in the event that medical records are missing, changed, or just added late.

As in all other cases, Caputo and Mariotti does NOT get paid unless we recover for the injured victim. Contact us today if you are the victim of medical malpractice for additional information and to schedule a free consultation.

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