Bringing a lawsuit against a doctor or hospital raises questions of medical malpractice versus medical negligence. There is a critical difference between negligent behavior leading to injury, and actual medical malpractice. Before you attempt to file a claim against a doctor, hospital, or other healthcare providers, you should understand this key difference.
Malpractice Versus Negligence
The primary difference between medical malpractice and medical negligence is the element of intent. When an act is negligent, it is accidental, through carelessness or mistake. Although that does not relieve the actor of responsibility, there was no deliberate intent to do harm.
Malpractice contains an element of intent or what is sometimes called “willful disregard.” In this type of action, the person knows that what they are doing has the potential to cause injury but continues with their activities despite the risk.
For instance, a patient needs an urgent medical test to check for the presence of an illness. The doctor means to order the test, but is distracted by another call and forgets to write the order. The doctor would be negligent because the test was not ordered, but the error was not intentional.
However, if the same doctor failed to order the same test because it was not covered by Medicare and the doctor would have to bill the patient, the omission is not accidental but intentional, and potentially malpractice.
What Is a Medical Malpractice Claim?
A medical malpractice claim is a claim brought against a doctor, hospital, or other healthcare provider for negligence that deviates from the reasonable standard of care expected of a professional. Doctors and other professionals are held to a higher standard than, for example, delivery drivers or plumbers because the potential for injury is greater.
Filing a medical malpractice claim means that the departure from the standard of care has caused injury or death due to the professional’s conduct. Merely because injury or death has occurred does not make the case malpractice. A doctor cannot guarantee the outcome of any procedure. But if the level of care was below what should reasonably be expected, it becomes malpractice.
Can a Suit Be Brought for Medical Negligence Alone?
Medical negligence is treatment that causes injury or death without the element of knowledge or intent. However, carelessness or accident does not relieve the medical professional from responsibility for their actions. The law recognizes that accidents sometimes happen and that no harm was intended, but the person is still liable for the results of that accident.
You would still have a claim for medical negligence even if the doctor or hospital did not mean for any harm to happen. To answer the question "What is medical negligence?" your attorney will look at the "4 D's" to see if the doctor or professional violated the standard of care. The “4 D’s for medical negligence are the same as for medical malpractice, the difference between them being absence or presence of intent.
What Are the 4 D's of Medical Malpractice?
These are the elements you and your attorney will need to prove in order to make a claim for medical malpractice.
Duty of Care
All professionals owe their patients a duty of care, to treat them according to the standard of care required by their relationship. The relationship must exist before the duty applies. For instance, a doctor has no duty of care to others at a restaurant. But your own doctor has that relationship to provide you with care.
Deviation from Standard of Care
Standard of care refers to what a reasonable caregiver would have done under the same conditions. Doctors are expected to provide the same level of skill and expertise as other doctors of similar training and experience.
Deviation from the standard of care occurs when the doctor unreasonably fails to provide the standard of care expected. Sometimes negative outcomes cannot be prevented in medicine. Deviation from the standard of care means that the professional did not act as another professional of the same level of experience would have been expected to act.
The deviation from standard must be the direct cause of the patient’s injury. This may be easy to prove, but not always. In cases where the doctor physically did something to the patient, such as leaving an object inside them during surgery, causation is easier to see, but if the doctor failed to order a test and an illness was missed, it may be less obvious.
You must show that you suffered actual damages to file a malpractice or negligence claim. The harm can be physical, mental, or both, but you must have suffered some type of injury. A medical malpractice claim cannot be filed merely because a medical professional failed to do something, or because the standard of care was violated. Actual harm must have arisen from the act or omission.
When Should You Seek Legal Representation?
You should obtain legal representation as soon as you believe you have been the victim of medical malpractice. This is a complex and technical area of law, and you should have your case evaluated as soon as possible.
Attorneys strongly recommend you consult skilled legal professionals rather than trying to handle these matters yourself. Doctors and hospitals have large legal departments available to them. You need the best assistance you can find.
What Is the Statute of Limitations for Medical Malpractice?
The statute of limitations for malpractice varies by state. In Florida, it is two years from the date of the discovery of the incident. That means on the date you learn that you were harmed by a medical professional, the clock begins to run.
Missing the statute of limitations is one of the most common reasons for losing a medical malpractice suit. Therefore, it is essential you contact an attorney immediately upon learning of any medical negligence in your care.
How Long Do Medical Malpractice Lawsuits Take?
The average time for a medical malpractice case from complaint to settlement or trial is two to three years. Occasionally, cases may settle much more quickly, and a few contested cases have dragged on for a decade or more.
The reason for this is something called discovery. Once the case is filed, your attorney and the medical professionals must exchange and review documents about your case. Each request for documents, and document review, takes several months, even when all parties are cooperating. This is another reason you should file your case as soon as possible after you believe you have been a victim of medical malpractice.
You should always obtain the best possible attorneys to handle your case. Not every firm can manage the complicated nature that comes with medical malpractice or medical negligence cases. At Ratzan Weissman & Bolt, we specialize in medical malpractice cases. Our attorneys handle top-tier malpractice claims as we are exceptionally knowledgeable in this area of law.
If you believe you have been a victim of medical malpractice or medical negligence, contact our firm today-we are here to help.