kansas city medical malpractice attorneysThere are many reasons to go to the doctor, including yearly check-ups, illness, or injury. When you visit the doctor, your goal is to leave with answers to your questions and a treatment plan for your condition. To assess your medical issue during your visit, your doctor may decide on a number of examination techniques depending on the severity and nature of your symptoms. These could include:

  • Physical examination
  • Blood tests
  • X-rays
  • Follow-up visits

Ultimately, your doctor may diagnose you and recommend treatment, which could include:

  • Prescribing medication
  • Molding a cast or splint
  • Performing surgery
  • Making referrals to specialists

Because doctors are specially trained and have unique skill sets, they have broad discretion regarding your medical treatment. As a patient, you trust their professional opinion about your diagnosis and treatment as appropriate and effective. But what happens when your diagnosis is inaccurate, your recommended course of treatment is ineffective, or your medicine is incorrectly prescribed? What happens when your doctor’s medical advice makes your condition even worse?

When medical professionals make decisions that consequently harm their patients, there are legal remedies for those patients to recover financially for any resulting damages. One of these available legal remedies is a medical malpractice lawsuit.

What is Medical Malpractice?

Medical malpractice exists when a patient is harmed by a doctor or other medical professional who fails to competently execute their role as a qualified practitioner. Some reasons for a medical malpractice claim include:

  • Misdiagnosis, delayed diagnosis, or failure to diagnose. An incorrect diagnosis arises when another competent doctor would have discovered the illness sooner, if at all, or would have concluded a different diagnosis. This may be cause for a claim against the treating doctor if an accurate diagnosis would have resulted in a better outcome for the patient.
  • Improper treatment. Improper treatment occurs when a doctor employs a treatment for a patient’s condition that would not be administered by any other competent doctor. Additionally, this applies if the doctor chooses the appropriate treatment for the patient but administers it incompetently or incorrectly and thereby causes harm to the patient.
  • Failure to warn a patient of known risks. A doctor may be liable for this form of medical malpractice when:
    • The doctor fails to warn a patient of known risks of a procedure or course of treatment
    • The patient would have opted out of the treatment had they known the risks, and
    • The patient is injured as a result of the treatment or procedure in a way that could have been avoided if the doctor had warned them of the risk

Although there are many circumstances under which a patient may bring a medical malpractice claim, such a claim may not be raised because of mere displeasure with the doctor’s treatment or dissatisfaction with the outcome of the doctor’s care.

What Do I Have to Prove in a Medical Malpractice Claim?

Medical malpractice claims are based on the legal doctrine of negligence. The burden is on the plaintiff (the injured patient filing the lawsuit) to prove that:

  • The doctor had a duty to the patient
  • The doctor breached their duty
  • The breach was the cause of the patient’s harm
  • The patient suffered actual damages

Duty: What kind of duty does a doctor owe to a patient?

For a patient to prove that the doctor had a duty to them, a doctor-patient relationship must have existed at the time. This means that the patient actually consented to the doctor providing medical services and the doctor agreed to do so. This relationship is most easily proven by the doctor physically examining and treating the patient. Other evidence of a doctor-patient relationship may be medical bills addressed to the patient or subsequent payments sent to the doctor.

When a doctor-patient relationship is formed, the doctor takes on a duty to the patient to provide a required medical standard of care.

What is the medical standard of care?

The medical standard of care refers to the level of competence at which a doctor must perform their duties. The standard asks whether the treating doctor performed their job as a similarly-situated health care professional under similar circumstances would have performed. This may be the most important and difficult element to prove in a medical malpractice claim. However, it is critical in determining whether or not the doctor acted appropriately according to commonly-accepted medical standards.

Expert witnesses are usually required to testify during medical malpractice claims. They will testify about the medical standard of care that is accepted in the field by explaining what a healthcare professional should do when they encounter situations similar to the one forming the basis for the current claim.

The expert will base their opinion on a healthcare professional who is

  • Competent
  • Reasonably skilled, and
  • Similarly situated

In order to be similarly situated, the health care professionals being compared must have similar professional careers and external circumstances. Other factors include:

  • Education and training. The expert may consider the medical school that the doctor attended and where the doctor completed their residency and other hospital training programs.
  • Experience/Position classification in the workplace. This includes any special positions or responsibilities the doctor may have held, such as involvement in significant or unique cases and overall exposure to different types of cases.
  • Supervision and duties. The expert may consider whether the doctor has the ability to freely practice medicine or if they require some supervision based on lack of experience. This may be affected by the number of supervisors to whom the doctor must report and how much discretion the doctor has to make decisions about patients.
  • Location. The type of community, size of the population, public access to medical care, and any alternative treatment options available may be factors that influence an expert’s opinion about the appropriate standard of care in a given case.
  • Availability of Resources. The expert also may consider whether the doctor has access to proper, reliable, updated computer and medical equipment, an adequately staffed workplace, and patient access to follow-up appointments and rehabilitation or supportive services.

The factors listed here are not exclusive and all are not required to prove that the defendant is similarly situated to a certain standard of health care professional.

Breach: Did the doctor follow the applicable medical standard of care?

Based on the established medical standard of care, experts for each party will be asked to apply that standard to the specific facts of the case to determine whether the doctor’s care satisfied the applicable medical standard. The patient’s expert may compare what the doctor should have done to what the doctor actually did in order to demonstrate that the doctor’s conduct did not satisfy the required standard of care.

Likewise, the doctor’s expert may testify that the doctor’s acts or omissions complied with the applicable medical standard of care by showing that reasonably competent doctors in the same situation would have diagnosed or treated the patient in the same manner.

After considering all of the opinions of the experts, a jury may determine whether the doctor breached their duty to the patient by deviating from the applicable medical standard of care when diagnosing or treating the patient.

Causation: Is there a link between the doctor’s breach of duty and the injury the patient suffered?

Because medical malpractice claims usually involve patients who were already sick or injured, there is usually a dispute over whether the doctor actually is at fault for the harm the patient suffered. With this in mind, the patient will need to prove that the injury was not caused by an underlying medical condition but, rather, by the inadequate care that the doctor provided.

The connection between the doctor’s breach and the patient’s injury may be proven by showing that the patient’s injury would not have happened were it not for the doctor’s mistake.

Damages: What actual harm did the patient suffer?

To be compensated financially in a medical malpractice claim, the patient must suffer actual harm. Even if the doctor clearly acted below the applicable medical standard of care, the patient has no claim if they suffered no harm as a result of the doctor’s behavior.

The patient can prove actual harm by showing that the doctor’s action or inaction caused an existing health condition to become worse or that it resulted in an additional injury or harm. Examples of actual harm suffered in medical malpractice claims include:

  • Additional medical bills
  • Rehabilitation costs
  • Pain and suffering (physical and mental)
  • Lost wages from missed work
  • Loss of earning capacity
  • Scarring and disfigurement
  • Permanent injury or disability

In cases in which the injury resulted in death, the patient’s surviving family may bring a cause of action (called a “wrongful death” claim) for any harm listed above, in addition to:

  • Funeral and burial expenses
  • Loss of companionship
  • Loss of future income
  • Loss of future benefits

What Damages Can I Recover in a Medical Malpractice Claim?

If the patient proves all of the required elements for medical malpractice, they may recover all of the expenses they incurred from the actual harm that they suffered. However, each state’s medical malpractice law may differ with respect to the process for filing a medical malpractice claim and the monetary amount that a jury may award to the patient.

Some aspects of medical malpractice claims that differ among states may include:

  • The requirements for providing notice to the doctor before filing
  • The use of pre-lawsuit review panels
  • The allowance of special filings
  • Variations in filing deadlines.

For this reason, it is important to hire an experienced medical malpractice attorney who knows the specific laws in your state and can effectively represent your interests in the case.

Contact Top Kansas City Medical Malpractice Attorneys Today

Medical malpractice claims are complex, often involving multiple parties and insurance companies. Court proceedings and time-sensitive deadlines can be both intimidating and overwhelming for someone who is not familiar with the process.

If you think you or a loved one may be the victim of medical malpractice, contact the attorneys at Foster Wallace, LLC, today for a free consultation. We have extensive experience litigating medical malpractice claims and dealing with the insurance companies that represent medical providers in defending these claims. We will fully evaluate your case to determine if you have a claim. If you do, we will see that you are fully compensated for your injuries.

Brian Wallace
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Kansas City Personal Injury Attorney
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