Medical Malpractice

There are two main reasons, or causes of action, by which a patient can recover for injury as a result of medical malpractice. In the first cause of action, responsibility depends on whether the doctor, in providing treatment, departed from the treatment that is generally accepted by fellow doctors in the community. If a departure in treatment is found to have occurred, recovery can be obtained only if the treatment was a substantial factor in causing the injury. At trial, medical doctors are called by the opposing parties in an attempt to define for the jury the standard of care and the treating doctor’s failure to provide that care. It is then for the jury to decide upon proper treatment, and further decide whether the accused doctor failed to provide the treatment.

The second cause of action is known as “lack of informed consent.” An injured party must prove that the doctor failed to tell the patient of a reasonably foreseeable risk of the procedure. Having been informed of the risks and alternatives, the patient must prove that reasonable person in the patient’s condition would have not gone forward with the procedure, and that the procedure was a substantial factor in causing the injury.

Keep in mind, medical malpractice differs from ordinary accident cases. For example, where a hospital employee or patient assaults a fellow patient in a hospital, these facts would give rise to a case of ordinary negligence, Even though the incident occurred in a hospital, these facts would support an action for negligence but not a claim for medical malpractice.