A doctor owes duty of care to each patient. A doctor must act with the same kind of care that a doctor in the same field exercises. Medical malpractice occurs when a doctor or a medical provider’s negligent act or the failure to act results in an injury or damages to a patient. Medical malpractice commonly occurs because of misdiagnosis, failure to give the proper treatment, and administration of incorrect medication. Possible parties a person can sue include the doctor and the hospital that employed the doctor.
Malpractice Lawsuits
In most states, legislation regulates medical malpractice lawsuits. Some states require plaintiffs to obtain a “certificate of merit” prior to filing a lawsuit. The plaintiff must obtain a certificate of merit from a medical expert that certifies that, based on a review of the patient’s medical records, the doctor failed to exercise the same kind of care a doctor in the same field would generally exercise.
Liability for Medical Malpractice
In addition to the doctor’s liability, the hospital that employs the doctor may be vicariously liable under the legal theory of respondeat superior. Under this theory, an employer may be vicariously liable for the negligent actions of an employee that occur within the scope of employment. Consequently, if a hospital employed the negligent doctor, it may be legally liable for the doctor’s negligent actions or failure to act.
What Is Informed Consent?
Every state has laws that require a doctor to inform a patient of benefits, risks, and alternatives to a course of medical treatment or a medical procedure. The duty to disclose this information is referred to as informed consent. The patient or the legal representative of the patient, such as a family member or a legal guardian, must give written consent to the treatment or procedure. A doctor is not required to receive informed consent in certain situations, including emergencies, situations where medical treatment is not involved, or when the patient is unconscious and family members are not available to give consent. The failure to give informed consent is medical malpractice.
Medical Malpractice Damages
Each state regulates the kinds of damages a plaintiff can receive in a medical malpractice lawsuit. One common regulation uses “caps” to place limits on the amount of damages and attorney fees a plaintiff can recover in a lawsuit. A plaintiff can typically recover damages for past, present, and future medical treatment, lost wages, and pain and suffering. A plaintiff must file a medical malpractice lawsuit within the statute of limitations, which is typically two years.
