Medical Malpractice

Medical malpractice occurs when a hospital, physician or other health care professional, through a negligent act or omission, causes an injury to a patient. The negligence might be the result of errors in diagnosis, treatment, after care or health management.

To be considered medical malpractice under the law, the claim must have the following characteristics, standard of care deviations, injury due to negligence, significant injury resulting from negligence.

Examples of Medical Malpractice cases

There are many forms of Medical Malpractice. Some examples of medical negligence that can lead to a lawsuit are:

• Failure to diagnose or misdiagnosis
• Misreading, ignoring, or mixing up laboratory or pathology results
• Unnecessary surgery
• Surgical errors or wrong site surgery
• Improper medication or dosage
• Poor follow-up or aftercare
• Premature discharge
• Disregarding or not taking appropriate patient history
• Failure to order proper testing
• Failure to recognize symptoms

Certified Legal Nurse Consultant’s role in Medical Malpractice cases

CLNC responsibilities are the traditional CLNC services. When reviewing the medical record of a Medical Malpractice case the emphasis is on the four legal elements of a negligence cause of action:

Breach of Duty, Damages and Injuries, Causation.

The CLNC analyzes medical records to assess: Mechanism, degree and extent of injury, whether full recovery has been achieved, short term and long-term prognosis and future healthcare needs. The process entails:

• Assessing and evaluating for conflicts, inaccuracies, and documentation of condition that are inconsistent with what is known to be correct.
• Research important dates to determine whether weekend or holidays are involved. Consider the shift on which the incident occurred.
• Not just speaking to what is in the record; Need to speak to what is missing by reading between the lines.
• Look for evidence of tampering which is almost impossible to defend and strengthens a plaintiff’s case dramatically.
• Examine every relevant entry for tampering alert signals.
  • Examine the EMR audit trail where relevant
  • Research metadata
• Identify specific missing records that should be discovered.
• Identify and address all four legal elements that pertain to malpractice cases.
• Anticipate and address opposing side’s arguments, positions, discuss both sides.
• Incorporate witness stories.
• Incorporate policies and procedures and other essential documents.
• Address what the attorney client will want to establish with the medical experts.
• Discuss potential players and what needs to be learned about them.
• Address nonclinical aspects that will impact the outcome of the case.
• Explain rationale for an objective opinion in the case.
• Support and bolster written opinions with scientific medical and nursing literature, national standards and guidelines.
• Produce a report to maximize usefulness to the attorney client.
• Assess the nursing process-comprehensively and specifically.
• Integrate an analysis by looking forward and backward to incorporate all relevant events prior and subsequent to the incident.
• Summary of conclusion and recommendations for further case development.

Depending on the case, if working for plaintiff or defense attorney client, differentials may include:

What is the Burden of Proof in medical malpractice?

There are certain medical standards that are recognized by the profession as being acceptable medical treatment by reasonably prudent health care professionals under like or similar circumstances. This is known as the standard of care. A patient has the right to expect that health care professionals will deliver care that is consistent with these standards. If it is determined that the standard of care has not been met, then negligence may be established.

The patient must also prove he or she sustained an injury that would not have occurred in the absence of negligence. An unfavorable outcome by itself is not malpractice. The patient must prove that the negligence caused the injury. If there is an injury without negligence or negligence that did not cause an injury, there is no case.

Medical malpractice lawsuits are expensive to litigate. Testifying experts from multiple specialists are costly and can require an inordinate amount of hours of deposition testimony. A meritorious case must show that significant damages resulted from an injury received due to the medical negligence-disability, loss of income, unusual pain, suffering and hardship, or significant past and future medical bills.

What leads to a meritorious Medical Malpractice case?

Plaintiff Deviations from the standards of care, policies and procedures, used in Medical Malpractice may include:

• Credentialing and Privileges
• Healthcare Facility
• Nurses
• Physicians
• Consults
• Medical Records
• Transfer
• Medication Administration
• Cardiopulmonary Resuscitation (CPR)

There may be many other Deviations of Categories of issues like, emergency triage, diagnostic studies and nursing and medical specialties

Who can face a medical malpractice lawsuit?

Potential Defendants in Medical Malpractice Cases include any healthcare provider whose negligence caused injury: