Medical malpractice occurs where a medical practitioner acts in a negligent manner when treating a medical condition.

Malpractice can occur from an action taken by the medical practitioner, or by the failure to take a medically appropriate action. Examples of medical malpractice include:

Failure to diagnose, or misdiagnosis of a disease or medical condition; Failure to provide appropriate treatment for a medical condition; Unreasonable delay in treating a diagnosed medical condition;

Medical Malpractice Claims: What Needs To Be Proved? In a typical medical malpractice suit, the following things must be proved by the plaintiff (or the person who is complaining):

That the physician owed him / her duty of care. That the physician violated the applicable standard of care. That the plaintiff suffered a compensable injury. That the injury was caused by the sub-standard care and conduct of the physician.

This means that the physician owes a duty of care to all those patients who seek his treatment. Once a doctor agrees to treat a patient, the patient is now under the care of the doctor and the doctor must provide him professional and competent care. The standards of care are usually laid down by different doctors associations. However, if the treatment results in some kind of compensable injury to the patient, then the proof of such injury must be shown. This includes physical injury and the

emotional effects of the treatment. If a patient or his estate can prove that the above mentioned facts are true, then he can claim for damages in this case of medical malpractice. The burden of proof lies on the patient or his estate, not on the doctor or health care professional. During the proceedings of the medical malpractice suit, often testimonies of experts and expert witnesses are called for by both sides of the claim. Medical Malpractice: Types of Damages The damages in the cases of medical malpractice can be classified as compensatory and punitive. Compensatory damages include economic and non-economic damages. Economic damages can include financial losses such as loss of wages, expenses for the medical care etc. These can also be assessed for past and future losses in this vein. The noneconomic losses are the losses caused due to the injury itself such as physical loss (like loss in vision due to wrong treatment), the reduction in the enjoyment of life due to this injury, pain and emotional stress. The punitive damages are usually awarded in the case of reckless conduct by the physician. Often, the claims in these cases of medical malpractice can go up to millions of dollars in compensations. It is due to this fact, that most states have enacted limits for the damages awarded, with an idea of limiting compensations for non-economic losses such as for pain and suffering related claims. Medical Malpractice: How Doctors React

Insurance does not often cover for these medical malpractice suits. Or the insurance companies began to charge hefty premiums for doctors. And the doctors at large began to suffer because of this. They claim that the cost of health care has gone up because of the rising number of malpractice claims. So, now the doctors practice a lot of what is termed as defensive medicine. This means, that a patient may often have to go through unnecessary tests and procedures which may not be medically required. These are merely defenses against the possibility of future malpractice claims. Informed Consent A medical practitioner may also be legally liable if a patient does not give "informed consent" to a medical procedure that results in harm to the patient, even if the procedure is performed properly. For example, if a doctor does not tell a patient that a surgical procedure has a 50% chance of causing paralysis, the patient does not have the necessary information to make an informed choice to either have or refuse the operation. If the patient has the operation, and is paralyzed as a result, the doctor may be liable even if the operation was performed flawlessly, as the patient might have refused the surgery if the risks were known. Medical Error Without Harm If the patient is not harmed by the physician's error, the patient cannot recover damages as the result of the error. For example, if a doctor misdiagnoses stomach pain as caused by appendicitis, and surgery discloses that it resulted from a perforated ulcer, if the patient would have required the surgery to repair the ulcer the patient will probably be

unable to bring a lawsuit - the surgery was necessary even with the correct diagnosis. However, if the patient was only suffering from indigestion, the unnecessary surgical procedure most likely would support a malpractice action. Medical Malpractice Lawsuits: Medical malpractice lawsuits comprise of the plaintiff and the defendant. The plaintiff in a medical malpractice case is the patient, or any individual legally designated to act on the behalf of the patient. In case the patient is no more, and in case of a wrongful death suit, the administrator or executor of the deceased's estate can take on the role of the plaintiff. The defendants in a medical malpractice lawsuit are the health care officials or at times entire institutions. Therefore, depending on the situation and gravity of the case, clinics, hospitals, medical corporations or managed care organizations may be defendants in a medical malpractice lawsuit. The term may also include nurses, dentists and any therapists. A successful medical malpractice case should prove that a legal duty of medical care and treatment was supposed to be undertaken by a health care officer or a health care institution on the patient and/or plaintiff. The case should further prove that the duty undertaken was breached and the medical care provider failed to perform their duties in line with the relevant standards of care. The case should further prove that the said duty was breached. This can be proved by sworn testimony or visible and proved results, in the form of injury, of obvious errors. Medical malpractice trials are similar to other cases of tort.

The plaintiff or the plaintiff's attorney files a lawsuit following the appropriate jurisdiction. The time between the filing of the suit and trial is used by the parties in question to share the information. This process is known as the discovery. Discovery includes depositions, requests for documents and interrogations. After the discovery, if the said parties cannot come to a mutual understanding, the case goes to trial. Such trails also have expert witnesses. The testimony of such witnesses is termed as 'expert testimony'. The expert witnesses must be qualified based on their qualifications and other standards set. A person should have sufficient training, education, knowledge and experience of the specific issue to be qualified as an expert in medical malpractice cases. The damages of a medical malpractice case may include punitive as well as compensatory damages. These damages may be economic or non-economic in nature. Non-economic damages comprise of psychological or physical harm, emotional distress or pain, while economical damages include financial losses, life care expenses and medical expenses.

Medical Malpractice Insurance: Most health care providers need to buy professional liability insurance. Nearly all states require that physicians have liability insurance. Even in states that dont, physicians usually have to have insurance coverage in order to get privileges to see patients at a hospital. Every medical assistant should be encouraged to make sure they have adequate insurance coverage when working in a medical office, walk in clinic, or any other treatment facility.

Even though medical assistants are dependent practitioners and work under the supervision of the physician, and the physician is responsible for their actions, it does not exonerate them from risk of individual liability. It is not enough to accept insurance under the employers policy as a rider, and assume this is adequate protection in case of a lawsuit. Medical assistants should insist on their own personal policy, either through their employer or on their own. Each health care provider is responsible for his or her own negligent acts, since malpractice is defined as "the negligent act of a person with specialized training and education." Mistakes, accidents, oversights, injuries, no matter how skilled and careful, can happen even to the very best. They usually occur when least expected and inadvertently cause harm to a patient! The Tort of Medical Malpractice Medical malpractice is a tort, which is a civil (as distinct from a criminal) wrong, other than a breach of contract, which causes injury for which the victim may sue to recover damages. Actions in tort derive from the common law, which means that the rules that govern them were developed by the courts of the fifty states, and no statute is necessary in order to bring a tort action. Statutes, however, can change the courtmade rules that govern tort actions, and many states have enacted tort reform statutes, including medical malpractice reform statutes. Medical malpractice liability arises when a health care professional engages in negligence or commits an intentional tort.

Negligence has been defined as conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. In most instances it arises from a failure to exercise due care, but a defendant may have carefully considered the possible consequences of his conduct and still be found to have imposed an unreasonable risk on others. Negligence is conduct, and not a state of mind. The following is a traditional description of the standard of care to which doctors are held to avoid liability for medical malpractice: This legal duty requires that the physician undertaking the care of a patient possess and exercise that reasonable and ordinary degree of learning, skill, and care commonly possessed and exercised by reputable physicians practicing in the same locality.

MEDICAL NEGLIGENCE UNDER CIVIL LAW Civil negligence is a form of negligence in which a patient brings an action for damages in the civil court against the medical attendant, who owes him a duty in tort of care, if he had suffered an injury in consequence of negligence or unskilled treatment. The liability of the medical attendant is not decreased by the fact that he treated his patient gratuitously in a charitable hospital. The amount of damage inflicted is a measure of the extent of liability. To be valid the suit for negligence must be filed in a civil court within three years from the date of alleged negligence. The law presumes that a person who enters the medical profession undertakes to use

reasonable degree of skill, care, knowledge and prudence in the treatment of his patient to the best of his judgment, but he is not liable for error of judgment or of diagnosis. A general medical professional is expected to use only the ordinary degree of skill and knowledge which the other general medical professionals of his qualification use, but he is not expected to perform a cure or the highest possible degree of skill and learning in his special line than a general medical practitioner, and is judged by the comparison with other specialist engaged in the same line. Persons who offer medical advise and treatment implicitly state that they have the skill and knowledge to do so, that they have the skill to decide whether to take a case, to decide the treatment, and to administer that treatment. This is known as an implied undertaking on the part of a medical professional. In some situations the complainant may invoke the principle of res ipsa loquitur or the thing speaks for itself. In certain circumstances no proof of negligence is required beyond the accident itself. The principle of res ipsa loquitur comes into operation only when there is proof that the occurrence was unexpected, that the accident may not have happened without negligence and lapses on the part of the doctor, and that the circumstances conclusively show that the doctor and not any other person was negligent. Three essential conditions considered necessary to use this doctrine are: (1) The nature of injury suggests by common knowledge or expert evidence that without negligence it does not occur

(2) The plaintiff must not contribute to his own injury (3) The defendant must be in exclusive control of instrumentalities. The Bolam Test is widely accepted as decisive of the standard of care required by professionals and medical professionals in particular. It has been invariably cited with approval before courts in India and applied to as touchstone to test of pleas of medical negligence. Bolam test requires a professional that: (1) He must command the corpus of knowledge not lag behind other assiduous members of his profession (2) He must have such awareness as an ordinarily competent practitioner would have of deficiencies of his knowledge and the limitations of his skill (3) He must be alert of the hazards and risks in any professional task he undertakes to the extent that other members of same profession.

MEDICAL NEGLIGENCE IN CRIMINAL LAW A physician may be charged with culpable homicide when a patient dies from the effects of anesthesia, an operation or any kind of treatment, if it may be proved but the death was the result of gross negligence. Prior to the administration of anesthesia or performance of an operation, the medical man is expected to follow some precautions. The Indian Penal Code, 1860, s. 304-A, states that whoever causes the death of a person by a rash or negligent act not amounting to culpable homicide will be punished with imprisonment

for a term of two years, or with a fine, or with both it is used to frame charges against medical practitioners in India. Why Is A Medical Malpractice Lawyer Needed For Medical Mistakes?

Medical Malpractice is a doctors failure to exercise the degree of care and skill that a physician or surgeon of the same medical specialty would use under similar circumstances. When medical "standards" are not followed, it is also known as medical malpractice. A lawyer that knows about medical problems & medical laws is needed to help a claim reach the courts in the fastest, accurate, and most complete way possible. A medical malpractice lawyer will work with the hospital system & medical law system to find out what your rights and legal options are. While you or someone you know gets better or recovers from your medical mistake or injury, the medical malpractice attorney will fight for your legal rights.

The Dangers of Misdiagnosis - Medical Malpractice Lawsuit Misdiagnosis (or delayed diagnosis) can cause many different problems, depending on the condition the patient is experiencing.

In fact, misdiagnosis can be quite dangerous if not corrected soon after the mistake has been discovered. Often a misdiagnosis results in an injury that may have been prevented or avoided with a proper diagnosis and treatment of the condition. In other cases a misdiagnosis leads to a progression of the untreated disease that could make the condition more difficult to treat. Treatment after a delay can also be more expensive and time-consuming, depending on the problem the patient has. A problem that is left alone usually becomes more serious as time goes on, causing more distress and pain for the patient. An untreated condition could also spread to other parts of the body. In worst-case scenarios, a misdiagnosis has the potential to cause permanent damage, or even loss of life. This is why in many cases a misdiagnosis is actionable in a court of law. In some cases a timely diagnosis is a key to quick patient recovery, although cases of medical malpractice involving misdiagnosis or delayed diagnosis are often difficult to prove. For example, a cancer patient may claim that the doctor failed to diagnose the condition soon enough, resulting in metastasis (the spread of cancer to other parts of the body). Experts in court may testify that the disease had probably already begun to spread at the cellular level before the doctor even made the diagnosis, and cancer cells

may have traveled through the bloodstream to other organs and tissue. In cases such as these, it can be difficult to determine if a patient grew worse due to a delayed diagnosis, or for other reasons. Another danger of misdiagnosis includes the harm that can be done by taking medication or receiving treatment that you don't need, while leaving the real problem to progress uninhibited. Wrong Diagnosis- Example:The patient was initially diagnosed as having Tuberculosis and treatment was given. However later on the basis of other symptoms it was found that he had Jaundice. Allegation that the hospital and attending doctors were negligent in their treatment and diagnosis. Complaint was held to be maintainable. (1993 Consumer Claims Journal 198) Negligence In Conducting Operation

Doctors concerned did not conduct necessary tests at pre-operative stage and conducted surgery without a neurosurgeon resulting in spinal cord injury. Opposite parties could not explain why removal of benign tumor in chest wall resulted in spinal cord injury. Opposite party institute directed to pay Rs. 14,00,000/-as compensation. (1999 CCJ 1099) National Commission.

Complainant's left hand became disabled during treatment. Damage to ulnar nerve was caused during treatment for amoebic liver abscess. Complaint held to be maintainable. Hospital was directed to pay Rs. 1,25,000/- as compensation. (1999 CCJ 940) Chandigarh.

Death of a patient at the time of operation. Opposite parties had anticipated likely complications that might arise in a major surgery of an obese patient with a rare blood group. Opposite parties directed to pay Rs. 2,55,355/- as compensation. (1999 CCJ 391) National Commission. Foreign body left inside after operation of leg which was removed by another doctor. Opposite parties directed to pay Rs. 20,000/- as compensation. (1999 CCJ 99) National Commission. Unqualified Nurse Wrong administration of injection caused paralysis of leg of a child and the nurse who administered the injection was not qualified. Opposite parties directed to pay Rs. 1,05,00/- as compensation and treatment expenses.(1999 CCJ 960) Kerala.

Medical Malpractice Statute of Limitations A malpractice statute of limitations is defined as the length of time, after the incident in question, that an individual is allowed to file a claim for medical malpractice. Specifically, the length of time in question varies based on the state in which the incident occurred. The so-called discovery rule is an example in which a states malpractice statute of limitation may not begin exactly from the time of the original incident. For example, if a doctor makes a mistake during surgery, but the damages from this

error do not make themselves known for a period of time thereafter, the statute of limitations may not begin until symptoms, discomfort or some sort of problems are apparent. Strategies For Avoiding Becoming a Plaintiff in a Medical Malpractice Case Medication errors - It is estimated that medication errors injure a million and a half people a year. The causes range from improper prescriptions, to sloppy handwriting, to confusion over similar drug names. It is therefore recommended that a patient keep a complete list of all medications, vitamins and over the counter medications that they take along with the dosages. Poor communication between doctor and patient is another cause of medical errors. Ask questions, have all tests and diagnostics explained to you. Question your doctor as to any issues which you don't understand or disagree over. Ask what else can be done, what other tests can be ordered and inquire about alternative forms of treatment or therapy. A good practice is to keep a complete medical file on you and all of your family members. Hospital errors including bed sores, falls, infections and failure to respond to patients in distress are common forms of hospital negligence. It is important that each patient have a family member or a friend act as a health advocate to monitor and follow up on the patient's care.

 Surgical mistakes account for thousands of injured patients every year. These include surgery being performed on the wrong patient or wrong sided surgery. Make sure to discuss the procedure in detail with your surgeon and have the surgical site marked with a permanent marker. If patients, their family members and health care advocates took on an active role in their medical care then many medical errors could be avoided.

Causes of Medical Malpractice

Doctors are very busy people that work in very busy environments that typically have too many things going on at once. In an environment with more patients than medical professionals and a huge number of cases per nurse, it is not surprising that sometimes things go wrong. What is surprising is the number of accidents that could have been prevented with simple check lists. One of the biggest underlying causes of medical malpractice lawsuits is confusion and hurt on the part of the family of someone that has died. Sometimes, it is true, there is an accident that occurs or something that goes wrong on an operating table that is no one's fault but just happens. When these errors occur, many times the doctor does not apologize to the family or even express grief. This commonly leads to medical malpractice lawsuits because the family has no other outlet for their grief.

Another cause is simple error. Leaving an instrument inside of a person is a common example. Operating rooms, while the staff tries to keep them organized, can still be hectic. With the layers of muscle and fat and other tissues that must be held back sometimes to get to the appropriate organ that needs attention, it is possible for an instrument to get lost in the fibers. This does not mean that it is ok to leave something insider of someone. One of the easiest ways to avoid this error is to double check that every instrument that was in the room at the start of the procedure is present at the end of the procedure. The occurrence of other things that result in medical malpractice can also be reduced through some surprisingly simple, and cheap, changes to how hospitals are run. For example, medication errors can be reduced by having the nurse receive the order for medication, write it down, read it back, and ask for confirmation of the order. This can actually reduce the number of errors that are due to misheard or misunderstood directions in general. In the vast majority of medical malpractice cases, the cause of the error is not gross negligence or even professional incompetence. With any science, the results are not always expected and strange things do happen. There is no way to predict what will happen when a test is run or medicine is administered. The only things that can be controlled in medicine are the actions by doctors, nurses, and other hospital staff.

 Medical Negligence under Consumer Protection Act:A Consumer is any person who hires or avails of any services for a consideration, and includes any beneficiary of such service other than the person who hires or avails of the service, when such services are availed of with the approval of the first mentioned person. Service means service of any description which is made available to the potential users, but does not include rendering of any service free of charge or under a contract of personal service. Deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance, which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. A medical service falls under the purview the Consumer Protection Act in the following cases:

Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical. Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by the persons availing such services. Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge, irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would

also be "service" and the recipient a "consumer" under the Act.

Service rendered at a Government hospital/health center/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer" under the Act. Service rendered by a medical practitioner or hospital/nursing home if the person availing the service has taken an insurance policy for medical care where under the charges for consultation, diagnosis and medical treatment are borne by the insurance company. Where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute service.

Examples of Medical malpractice Cases:A patient underwent surgery with Halothane (fluothane) as the anesthetic agent, even though he had suffered previous biliary tract disease, which made the use of this anesthetic contraindicated. The patient died as a result of liver necrosis due to the effects of the anesthetic.

A trainee anesthesiologist ran out of oxygen before the operation was completed, causing the patient to suffer a fatal cardiac arrest. A patient who underwent surgery for the repair of a pilonidal cyst under epidural anesthesia ended up with permanent uncontrolled movement of the lower extremities.