Medical Malpractice

Medical Malpractice Overview

At Mellino Law Firm, we strive to ensure no other family has to experience the pain of a medical error by effecting change in hospitals and other medical facilities.

Medical malpractice occurs when a healthcare practitioner’s negligent act or failure to act results in harm to a patient. Negligence could include an error in a diagnosis, treatment, or illness management. If such negligence results in injury or death, that doctor may be held liable if his or her actions deviated from generally accepted standards of practice. Hospitals may also be held accountable for such things as medication errors, infections, or failing to supervise a patient.

Malpractice laws are designed to protect patients’ rights to pursue compensation if they are injured as the result of negligence. However, malpractice suits are often complex and costly to win. While theoretically, you can seek compensation for any injury, regardless of its seriousness, a medical malpractice attorney can advise you whether your claim is worth pursuing.

Theories of Liability in Malpractice Cases
Negligence. Most medical malpractice cases proceed under the theory that a medical professional was negligent in treating the patient. To establish negligence, an injured patient, the plaintiff, must prove:

  • The existence of a duty owed by the health care professional to the plaintiff (for example, a doctor/patient relationship)
  • The applicable standard of care, and the health care professional’s deviation from that standard, which is deemed a breach of the duty owed to the patient
  • A causal connection between the health care professional’s deviation from the standard of care and the patient’s injury
  • Injury or harm to the patient

One of the most important aspects of a medical malpractice action is establishing the standard of care to be applied to the health care professional. To find a medical professional legally at fault, it must be shown that his or her conduct fell below a generally accepted standard of medical care. To establish the standard to be applied, the plaintiff must present expert testimony not only as to the standard of care applicable, but that also establishes that the defendant failed to meet the standard. In cases where the defendant’s violation of a standard of medical care is so apparent as to be comprehensible to the average person, expert testimony may not be required.

Another element of medical malpractice actions, causation, is sometimes difficult to establish. Specifically, the plaintiff must show that his or her health care provider’s deviation from the applicable standard of care resulted in his or her injury. This is challenging because sometimes there may be other factors that contributed to the plaintiff’s eventual injury.

Informed Consent

In many situations, the failure to obtain a patient’s “informed consent” relative to a procedure or treatment is a form of medical negligence, and may even give rise to a cause of action for battery. Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must inform the patient all of the potential benefits, risks and alternatives involved in any surgical procedure, medical procedure or other course of treatment, and must obtain the patient’s consent to proceed.

Breach of Contract or Warranty

Although doctors very rarely promise specific results from procedures or treatments, in some cases they do, and the failure to produce the promised results may give rise to an action for breach of contract or breach of warranty. For example, a plastic surgeon may promise a patient a certain result, which result may be judged more easily than other types of medical results, simply by viewing the patient. Similarly, if a patient is not satisfied with the outcome of a procedure and the physician had guaranteed or warranted a certain result, the patient may attempt to recover under a theory of breach of warranty.

Legislation Affecting Malpractice Actions
Due to the power and resources of the healthcare industry, many states have passed legislation making it more difficult to prevail in medical malpractice actions. In most states today, physicians and hospitals are protected by legal limits called “caps” on the amount of damages and attorneys fees that can be awarded in malpractice suits. In addition, barring extraordinary circumstances that affect the case, state laws provide set periods, called statutes of limitations, within which a plaintiff must file a malpractice action in court.

Certificate of Merit

One obstacle plaintiffs in many states may have to overcome before they can even file a malpractice action against a health care professional is the requirement that they file what is commonly known as a “certificate of merit.” In order to file a certificate of merit, a plaintiff will first have to have an expert, usually another physician, review the relevant medical records and certify that the plaintiff’s health care provider deviated from accepted medical practices, which resulted in injury to the plaintiff. The plaintiff’s attorney then files the certificate of merit, which confirms that the attorney has consulted with a medical expert and that the plaintiff’s action has merit.

Potential Defendants
Medical malpractice can be committed by any healthcare professional, including doctors, surgeons, nurses, technicians, pharmacists, and hospital staff.

In a case in which a hospital employee commits malpractice, the hospital itself may be held liable under the legal doctrine of “respondeat superior.” Under this theory, an employer may be held liable for the negligent acts of its employee if the employee was acting within the scope of his or her employment when the negligent act or omission occurred. This doctrine is important to medical malpractice cases, because it helps ensure that a financially responsible party will compensate an injured plaintiff.

In general, no healthcare professional can guarantee a positive outcome. An unanticipated, unsuccessful, or unsatisfactory result from treatment or surgery does not, in itself, mean that medical malpractice has been committed. Nonetheless, if you believe you may have been the victim of negligence, contact our Cleveland, Ohio, attorneys for a free consultation, or request our free, easy-to-read guide to filing a claim in Ohio.