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What’s Behind Medical Malpractice?

Posted by attorney Christopher Zachar

What is medical malpractice? When the care provided by a licensed medical professional (doctor, nurse, etc..) deviates from accepted standards of practice in the medical community, resulting in injury or death to a patient, a claim for medical malpractice exists.

Medical errors occur everyday. Whether these errors are egregious enough to warrant a claim for the wrongdoing and compensation, is another matter altogether. My doctor overprescribed me some mediation, and it caused me a headache for a week. Malpractice? Possibly. A case for a medical malpractice claim? Not even close.

Doctors and hospitals can be held liable for injuries and deaths that result from mistakes. Nearly 250,000 people die each year due to medical malpractice – nearly half of them due to errors in hospital emergency rooms. Medical malpractice has become one of the leading killers in the United States – 6th after deaths from heart disease, cancer, stroke, chronic lower respiratory disease and accidents.

What kinds of mistakes can constitute malpractice?

Misdiagnosis, Birth injuries, Medication errors, Infections in hospitals, Errors during surgery, Medical record errors, Unnecessary surgery, Unlawful practice of medicine.

Among the statistics: There are 7,000 deaths and 1.5 million adverse drug events due to medication errors each year. Two million hospital patients acquire infections each year, with 90,000 dying from them. There are 1,500 incidents of surgical tools left in patients each year. Medical errors, professional negligence and sub-standard care are a tragedy affecting millions of people.

Only 0.3% – a very tiny percentage – of total health care costs in the U.S. are attributable to medical errors. But it is estimated that the cost of disability, lost income, and personal care expenses due to medical errors in the U.S. is somewhere between $17 and $29 billion annually.

Health care professionals and facilities carry medical malpractice insurance to cover their risks, at a total cost of nearly $7 billion annually. Doctors talk a lot about the skyrocketing cost of their liability insurance, and it is true that it has increased years ago, but the trend now sees rates dropping, and many insurers refunding premiums to physicians. Indeed, the money paid out in malpractice insurance claims have decreased by nearly 15% in recent years. In Arizona, the largest medical malpractice insurer (MICA) has issued refunds to its member physicians in the amount of $180 million in the last five years. Does that sound like there is a medical malpractice crisis in Arizona?

The number of medical error claims by injured patients is far lower than we might expect. Some analysts report that only one in ten patients who are injured or die seek to file a malpractice lawsuit or claim. Even then, of all medical malpractice suits filed, only about 25% are successful. In 2009, there were fewer than 40,000 payouts to victims, compared to nearly 250,000 deaths, and many hundreds of thousands or millions of injuries that did not result in death.

What are the rules for filing a malpractice suit? There are four basic requirements for what is legally referred to as a “tort of negligence." You must be able to prove that:

• There was a legal duty owed when a hospital or health care professional provided care or treatment.

• That the legal duty was breached, and the care provided was not the standard of care to be expected from that provider.

• That the breach caused an injury, and that it was the specific or proximate cause of the injury.

• That there was actual damage to the person. If there was no real damage experienced, then there is no basis for a claim, even if there was negligence.

Medical malpractice lawsuits are very difficult to bring, and no matter how strong the facts may be, even harder to win. To assure the best success, find an experienced medical malpractice attorney in your area. Any attorney can bring a med mal lawsuit, but given the difficulties, it often takes an attorney with a strong medical malpractice background to be successful.

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