Medical malpractice occurs when a medical provider (doctor, nurse, therapist, etc.) causes harm to a patient as a result of a breach of the standard of care. A breach of the standard of care can occur in a number of ways. For example, if a doctor fails to provide treatment that should be given that can be a breach of the standard of care. Or if a treatment is provided but done wrong that can also be a breach of the standard of care. Virginia law generally requires the testimony of a medical expert to determine if the standard of care was breached. View more information here.
There are four basic elements of medical malpractice:
- There must be doctor/patient relationship. If someone gets incorrect information from a doctor who had not already consented to be his/her doctor, the doctor is not liable for any injuries that occur. If a person is providing emergency first aid to another person outside of the context of a doctor-patient relationship, that person is not responsible for innocent mistakes made.
- There must be medical negligence, which is a mistake in diagnosis or treatment, that is outside the generally accepted standard of care.
- The harm must have been a result of the medical negligence.
- The harm must be quantifiable (measurable).
The standard of care is what a reasonable person in the same profession and situation with the same training would have done. All medical professionals (e.g., doctors, surgeons, pediatricians, pharmacists, nurses, etc.) are held to certain standards of care.
A bad result or an unintended outcome does not always mean the medical provider committed malpractice. There can be complications involved with medical treatment that result in a bad outcome but are not the result of malpractice.
By itself, no. Doctors are human; they make mistakes. For a doctor to have committed malpractice, s/he must havec violated the standard of care for his/her specific field and profession.
And even if the doctor’s mistake was not within the accepted medical practices for that profession, if the mistake did not cause quantifiable harm to the patient, it is not medical malpractice.
- A patient’s right kidney was cancerous, and his left kidney was healthy. He signed a surgical consent form to have a surgeon remove his malignant right kidney. The surgeon accidentally removed the healthy left kidney, which left the patient with only one kidney, the malignant one. The surgeon also had to remove the malignant kidney, which forced the patient to undergo dialysis several times a week to sustain life. He is now on a long waiting list for an organ transplant.
In this situation, the surgeon committed malpractice by removing the wrong organ and harming the patient.
- A patient has advanced heart disease. Her only hope is to have a high-risk surgery. Without the surgery, her life expectancy is only a few weeks. The surgeon advised her verbally and in writing that the procedure carries a risk of 30 percent that she might not survive the surgery. After the surgeon thoroughly explained the procedure and its risks, the patient signed the surgical consent form. Although the surgeon performed the surgical procedure flawlessly, the patient died in surgery.
The surgeon did not commit malpractice. The patient understood the risks and consented to the procedure. The doctor performed within her field’s standard of care. There was no medical negligence; therefore, there was no medical malpractice.
While many people associate doctors with malpractice, they are not the only ones who can be liable for malpractice. Any of the following parties can commit malpractice:
- Physician’s assistants
- Nurses and nurse practitioners
The statute of limitations in Virginia is two years. Generally, this means that you have two years from the date the malpractice occurs to settle your claim or file a lawsuit. There are very limited circumstances in which you may have more than two years. (For example, if you were a minor when the malpractice occurred). You should always talk to an attorney to determine the applicable statute of limitations on your case.
If your injury was caused by malpractice, you may be able to sue the negligent medical provider for monetary damages to compensate you for your injuries. Recoverable damages include medical bills, lost wages, pain and suffering, etc. In Virginia, there is a statutory cap on the amount of damages recoverable in a malpractice claim. For injuries that occurred on or after July 1, 2008, the damages cap for malpractice cases is Two Million Dollars ($2,000,000.00).
While doctors are supposed to heal patients instead of hurting them, a hurt patient does not automatically point to wrongdoing by a doctor. Instead, for a doctor to have committed malpractice, s/he must have done something that another reasonable professional would not have done in the same situation. More here.
Medical malpractice cases are complex and difficult, but victims do not need to go through them alone. The medical malpractice attorneys at Tronfeld West & Durrett help medical malpractice victims get the compensation they deserve. Call 804-358-6741 for a free consultation today.