Determining Liability for Medical Malpractice

A professional health care provider is liable for medical malpractice if he does not follow the reasonable standard of care for a person in a similar situation.  His standard of care is based on others in similar professional roles.  An emergency room doctor is held to a different standard than a dermatologist, and both are held to a different standard than someone who is not a doctor.  Determining liability for medical malpractice can be a difficult and time-consuming process involving expert testimony and fact specific investigations. While every malpractice suit is different and there are many different kinds of malpractice, three general categories of malpractice liability are listed below: 

Failure to Warn a Patient of Known Risks

A person can make a claim for negligent nondisclosure which means that a doctor did not tell the patient everything he needed to know before consenting to a particular type of treatment.  In order to succeed on this type of claim, the patient must prove that a reasonable would not have consented to the treatment had that reasonable person been informed of the potential risks.  If a reasonable person would have carried on with the treatment after receiving the notice, then a patient’s claim fails.  For example, most patients are warned of the risks of anesthetics before surgery, but if the surgery is not elective, reasonable people would have the anesthesia anyway.  In that case, if a person was not given the warning, it may be difficult to prove there was any harm done by the nondisclosure.

Improper Treatment

Professional health care providers have a duty to perform their work as a reasonable and careful professional in a similar position would perform.  Health care providers are expected to be educated and up to date on the latest practices in their area of expertise.  When a healthcare provider does not act reasonably or carefully, or does not stay up to date on the best practices, he can be held liable if an injury results from the provider’s ignorance. Improper treatment could be a procedure performed by the doctor which was known to lead to complications that did not justify the treatment.  It could be a situation where a surgeon operated on the wrong leg, or removed the wrong body part.  The list of possible improper treatment is endless.  To prove liability, the health care provider’s treatment must be proven to be the cause of the injury and the provider must be proven to have acted negligently.

Failure to Diagnose

Some diseases or conditions are very difficult to diagnose, and some, like prostate cancer, are almost impossible to diagnose before the cancer has spread beyond the stage where treatment can help. That is why doctors are not held to a standard of being responsible for detecting every condition when it started.  Doctors are held to a standard which makes them responsible for detecting a condition when any reasonable, adequately trained, and careful doctor would detect the condition. If a reasonable doctor would order tests or a scan before making a diagnosis, and a doctor chooses not to order them, he could be held liable for failure to diagnose.