Medical malpractice is what occurs when a medical professional fails to adequately perform services that are part of their practice. Medical malpractice can be anything from a breach of a contract to intentional battery, but most often when someone refers to medical malpractice, they are referring to medical negligence.1 To understand if you have been a victim of medical malpractice, it is necessary to understand what negligence means. Negligence2 has the following four elements:
- A duty.
- A breach of that duty
In order to prove that you are a victim of medical malpractice, you must establish each of the four elements. Before you can discuss a breach of duty or damages which are caused thereby, you need to understand what is meant by “duty.”
The duty of a medical professional is defined by law. A medical professional is required to use the ordinary skills, means, and methods recognized as necessary and which are customarily followed in the particular type of case according to the standards of those who are qualified by training and experience to perform similar services. This standard of care is seemingly relative and does not require a medical professional to perform their tasks perfectly.
An important role of a doctor is to diagnose what is wrong with a patient. A simple Google search will reveal that that one’s symptoms can often indicate anything from the common cold to cancer. Doctors rely on their own observations as well as information provided by the patient to determine what is wrong. Accordingly, diagnoses include several variables and plenty of room for error. Nevertheless, the diagnostics set the stage for the treatment and deciding on one diagnosis can sometimes be to the exclusion of another diagnosis that would require a completely different treatment. It is not difficult to understand why the most common and complicated occurrence of medical malpractice involves diagnosing, or failing to diagnose, an ailment.
Health care providers are not expected to get the diagnosis right all the time, this is why one gets a second opinion, but doctors are under a duty to diagnose a patient’s condition in accordance with the care and skill that is recognized as acceptable and appropriate by reasonably prudent similar health care providers in the light of all the circumstances. Failure to do so may subject a health care provider to liability. In most cases, whether a health care provider breached this duty of care will have to be determined by expert testimony.
State statute specifically addresses diagnosing a patient’s medical condition. The standard of care for diagnosing conditions involves:
Early detection is often the key to treatment and recovery. This is especially true when it comes to cancer. Failure to timely diagnose an issue can therefore be deadly. For example, in a recent court case, a woman passed away from breast cancer despite being referred by her gynecologist to a doctor for an evaluation after the gynecologist discovered a suspicious lump in the her right breast. The doctor examined the woman, but decided not to take any action and have her return in three months. Over the next three months, the lump continued to grow into a malignancy. The court found that a jury must determine if the doctor’s actions satisfied the reasonable care, or if something more should have been done sooner.
While the accuracy of a diagnosis is difficult to judge, the accuracy of testing is something that can be used to ensure that a doctor is meeting their stand of care. In another case, two parents engaged a doctor to perform a diagnostic ultrasound test on their unborn fetus to detect any defects or abnormalities in the pregnancy. The test did not provide adequate views of the head, yet the doctor failed to order new ones. As a result, the doctor was unable to detect that the fetus had a physical condition that caused it to be born brain damaged and crippled. The court found that a jury needed to determine level of diagnostic testing the doctor had a duty to perform.
The statute provides further protection for doctors given the changing trends and techniques for the delivery of health care in this state and the discretion that is inherent in the diagnosis, care, and treatment of patients by different health care providers. The statute provides that a health care provider will not be liable for his failure to order, perform, or administer supplemental diagnostic tests if he acted in good faith and with due regard for the prevailing professional standard of care. In the above example, the criticism was not whether the doctor used the right test, but rather if he acted in good faith when making his decision off of inadequate views.
Once a diagnosis is made, the healthcare provider has a duty to disclose that information to the patient and to provide a full analysis in addressing the patient’s concerns. Without knowing or understanding their condition, a patient may not be able to seek treatment or act in a way to mitigate or prevent it from getting worse. This duty is only limited to facts that are known the doctor based on timely and accurate test which a reasonable doctor would use.
If you believe that you have been a victim of medical malpractice, contact a New Port Richey medical malpractice lawyer for a free case evaluation.
The above discusses one form of negligent medical malpractice, though there are many other forms of medical negligence. If you believe that you have been improperly diagnosed, treated or cared for by a medical professional, the experienced medical malpractice attorneys at the Dolman Law Group can help you determine your options. Call us today at 727-853-6275 for your free case evaluation.
Dolman Law Group
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New Port Richey, FL 34652