How Is Malpractice Defined By Law?

This site is all about medical malpractice law. Attorneys in this practice area need to know what malpractice is (generally), how to research and investigate claims of malpractice, why these cases matter to clients. Malpractice isn’t always simple, though. 

According to the Legal Information Institute at Cornell University, malpractice is defined as “the tort committed when a professional fails to properly execute their duty to a client. The duty of a professional to a client is generally defined as the duty to follow generally accepted professional standards. Of course, the other elements of a tort (breach, proximate cause, actual cause and damages) must also be shown. Malpractice suits are most common against doctors and lawyers.”

There are four basic elements for any malpractice case. They include: Duty, Dereliction, Direct Cause, and Damages.

Duty is defined as the care owed to patients — but the plaintiff’s lawyers must prove that the appropriate standard of care has been somehow breached. This breach is called the Dereliction. The Direct Cause comes next, and is what the lawyers use to establish that an injury has been caused by the Dereliction. And finally, the Damages are the losses incurred by the plaintiff. These losses might include fees and bills as the result of an injury, lost wages, future lost wages, ongoing medical treatment, and even pain and trauma. 

An anonymous lawyer from the Matteucci Family Law Firm explained, “Legal malpractice can happen in any legal practice area. Medical malpractice is one of the most common types of legal cases, but lawyers are capable of making mistakes the same as doctors. We were hit with a malpractice suit last year, but it was eventually dismissed as frivolous. When life and death are on the line, cases are more common. We’re lucky in that regard.”

Patients will sometimes experience unexpected issues when on the operating tables. Everyone knows to expect this. That’s why lawyers must prove that a standard of care has been breached. If the doctor provided the highest standard of care but the patient still bled out on the table, a wrongful death suit (which is also a type of medical malpractice suit) cannot be won.

What does a high standard of care mean? It can go beyond actual services provided. For example, your doctor has the duty to keep anything you say between you both. If your doctor tells a stranger you have cancer, then technically the doctor is guilty of medical malpractice. A breached standard of care occurs in situations like these, but also when the care provided to the patient falls below the standard of a doctor with a similar education.

A breach of duty for medical malpractice might include misdiagnosis, ignoring the symptoms of a life-threatening condition, incorrect prescriptions, or leaving a surgical instrument inside the body during an operation.

A medical malpractice attorney will investigate by taking medical records, obtaining testimony when necessary, looking for other malpractice concerns or complaints, and compiling the evidence so that it might be easily recognized by a jury as a breach of care.

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