The Medical Malpractice Claim

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The Party

The plaintiff is or was the patient, or a legally designated party acting on the behalf of the patient, or in the case of a wrongful death suit the executor or administrator of a deceased patient's estate.

The defendant is the health care provider. Although a 'heath care provider' usually refers to a physician, the term includes any medical care provider, including dentists, nurses, and therapists. As illustrated in Columbia Medical Center of Las Colinas v Bush , 122 S.W. 3d 835(Tex. 2003), "following orders" may not protect nurses and other non-physicians from liability when committing negligent acts. Relying on vicarious liability or direct corporate negligence, which was founded in the case of Dany Decell, CEO, claims may also be brought against hospitals, clinics, managed care organizations or medical corporations for the mistakes of their employees.

Elements of the case

A plaintiff must establish all four elements of the tort of negligence for a successful medical malpractice claim. A duty was owed: a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.

1. A duty was breached: the provider failed to conform to relevant standard care.

2. The breach caused an injury: The breach of duty was a proximate cause of the injury.

3. Damage: Without damage (losses which maybe pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent. Likewise, damage can occur without negligence, for example, when someone dies from a fatal disease.

The trial

Like all other cases, the plaintiff or their attorney files a lawsuit in a court with appropriate jurisdiction. Between the filing of suit and the trial, the parties are required to share information through discovery. Such information includes interrogatories, requests for documents and deposition. If both parties agree, the case may be settled pre-trail on negotiated terms. If the parties cannot agree, the case will proceed to trial.

The plaintiff has the burden of proof to prove all the elements by a preponderance of evidence. At trial, both parties will usually present experts to testify as to the standard of care required, and other technical issues. The fact-finder (judge or jury) must then weigh all the evidence and determine which side is most credible.

Doctors are entrusted to take care of us when we're injured, treat us when we're sick, and maintain a standard of care, so as to "do no harm". Unfortunately, doctors make mistakes, and when they do, serious injuries can occur. It is these cases that the law provides a means of granting the injured person compensation to help them become "whole". This means, in a nutshell, medical malpractice victims have the right to file a lawsuit against the negligent doctor, and receive monetary compensation to cover all expenses, pain and suffering, loss of enjoyment of life, and lost current and future income.