Medical malpractice is the failure of a healthcare provider (e.g. doctor, nurse, hospital, urgent care center) to provide care to an individual that meets the standard of care, and which causes injury to the individual as a result.
What Is Meant By A Breach Of The Standard Of Care In A Medical Malpractice Case?
A breach of the standard of care occurs when a medical care provider does not provide the type of care or treatment that other similarly trained medical providers would provide under similar circumstances. For example, it would be a breach of the standard of care for a radiologist to miss something important on an X-ray, and for that oversight to cause a subsequent long-term injury.
What Types of Situations Result In The Need For Someone To File A Medical Malpractice Claim?
There are lots of situations that can result in the need for someone to file a medical malpractice claim. For example, I represented a client who had a chest X-ray done in order to be cleared for back surgery. At the time, my client decided not to undergo the back surgery and resumed his normal life. However, the radiologist forgot to tell my client that the X-ray evidenced a tumor in his lungs. By the time the client returned for back surgery, the tumor had substantially advanced to the point that it was not operable and not treatable by chemotherapy, and he died a week later.
The radiologist should have advised my client to seek treatment from a proper physician for the chest tumor. This is an example of medical malpractice based on a failure to diagnose. This type of breach of the standard of care might not give rise to a case for medical malpractice if the tumor was of a nature that it could not be treated anyhow. In other words, the failure to diagnose might not have been a proximate cause to the damage.
As another example, I represented a family whose child was born profoundly handicapped (i.e. retarded and quadriplegic). We found out that the mother and father had herpes. Prior to the time that the child was conceived, the father went to a urologist who failed to diagnose the herpes. The herpes transmitted to the mother and to the baby, causing profound brain damage.
Who Can File A Suit For A Medical Malpractice Claim?
If an individual dies as a result of medical malpractice, their spouse, children, or a lineal descendent can file for medical malpractice. For example, if a child is the victim of a medical malpractice-related death, then their parent would be appointed as what’s called the ‘next friend,’ and would be able to bring the cause of action on behalf of the child.
If A Case Starts As A Medical Malpractice Claim And The Individual Later Dies, Would The Case Stay Within the Medical Malpractice Arena Or Become A Wrongful Death Case?
The case would be what we call a malpractice case sounding in wrongful death. This means that the case would continue and we would still have the same standards of proof that we have in a regular medical malpractice case. The spouse or lineal descendent in line would become the personal representative of the decedent’s estate and bring the action from that standpoint.
What Elements Make For A Strong Medical Malpractice Case?
Most medical malpractice cases are defended by the doctors or the facilities on what we call causation. Essentially, this means we have to prove that the negligence of the doctor ultimately caused the damage. In reference to the earlier example of the client whose chest tumor went undiagnosed, had the cancer been untreatable anyhow, the case would have had the element of negligence but not damage. These cases are difficult because there is always an expert who will contend that the negligence didn’t cause the problem.
For more information on Medical Malpractice in Michigan, Call Medical Malpractice Law Attorney Robert Spector to schedule an initial consultation: (248) 266-7600.
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