When you go to the doctor, you’re trusting them with your medical care; but sometimes, doctors commit medical negligence by not providing proper care. That care, which is required by law, must be taken seriously.
Now, you might wonder, “What is medical negligence?”
Medical negligence occurs when a hospital or doctor injures a patient through a negligent act. Typically, negligence results in errors in diagnosis, treatment, aftercare, and health management. That negligence causes harm to the patient and affects their quality of life until the results of the neglect have been resolved, if not longer.
This blog is all about what constitutes medical negligence and the specific elements required to prove it. Continue reading to learn more about the characteristics of medical malpractice.
The 4 D’s of Medical Negligence
Every medical malpractice case must meet four requirements if the victim plans on receiving compensation. These requirements are known as the four D’s of medical negligence. They include duty, deviation from duty, damages, and direct cause.
1. Duty
Duty refers to a healthcare provider’s duty of care. A patient must demonstrate that they have an established relationship with their healthcare provider; this proves the healthcare provider owed them a duty of care. A duty of care is a legal obligation imposed on an individual that requires adherence to a standard of reasonable care.
In the medical industry, a professional must follow protocols and exercise compassion when caring for a patient. Conversely, if a specialist feels they lack the credentials to care for a patient properly, it’s their responsibility to refer them to another medical professional.
Proving a duty of care is as easy as providing copies of your medical records containing your physician’s or healthcare provider’s information. Establishing responsibility is the first and easiest step to proving medical negligence. The next three steps become harder to prove. Let’s take a look.
2. Deviation
Physicians and healthcare providers who deviate from an accepted industry standard can be held liable for medical malpractice. The patient must demonstrate the physician or healthcare provider didn’t follow medical standards, including those specific to their profession. In other words, the doctor didn’t take good enough care of the patient.
Some examples of deviation from the standard of care include:
- Misdiagnosing a patient.
- Diagnosing a patient too late.
- Giving the wrong medicine.
- Prescribing a medication that has a dangerous interaction.
- Prescribing an incorrect dose.
- Using medication for external use.
- Doing unnecessary procedures.
- Committing a surgical error.
Any of these errors are severe enough to cause harm to a patient and qualify as a deviation of care.
3. Damages
The patient must also prove, using a preponderance of the evidence, that the physician’s deviation from the standard of care resulted in damages. Said damages can be physical, mental, emotional, and financial.
For example, say a doctor leaves a surgical tool inside their patient. That qualifies for every type of damage. A surgical instrument would cause physical health issues requiring further medical treatment, ultimately costing the patient more money and causing mental and emotional distress.
Of course, you’ll need proof. Evidence of damages includes:
- Medical records.
- Prescription records.
- Statements from other physicians in the industry.
- Cost of corrective treatment the patient endured.
Additionally, the evidence must show that the breach of duty caused the injury and included physical and financial damages.
4. Direct Cause
Finally, a patient must prove the deviation by the healthcare provider was the direct cause of their injuries. For instance, a patient’s broken arm doesn’t heal correctly because the orthopedist didn’t apply the cast according to industry standards. In this situation, the patient can hold their healthcare provider accountable for their injuries.
On the other hand, if a patient with a fractured arm was playing football and they slipped and fractured it further, then the physician isn’t liable. Instead, the patient is responsible for not following the treatment protocol for their arm.
The Bolam Test
A legal benchmark, the Bolam Test, refers to the case Bolam v Friern Hospital Management Committee, in which a patient received electroconvulsive therapy (ECT) to help with depression.
The patient was unaware that muscle relaxants and restraints could be part of ECT. He did not receive any muscle relaxants, nor was he restrained outside of the nursing staff who were there to keep him on the bed. Bolam had violent muscle spasms that caused fractured hips.
Bolam sued his medical provider for not telling him about the muscle relaxant, stating that he wouldn’t have been injured if it had been administered to him. Additionally, he would never have received the treatment if he had been aware of the risks.
Bolam lost the case in court due to the defense’s argument that the medical provider wouldn’t have explained those risks unless Bolam specifically asked about them. The doctor wasn’t guilty of medical negligence because his actions were reasonably competent.
The Bolam Test forces claimants to prove the provider’s lack of responsibility. Subsequent case law states that a defense, arguing against a claimant, must prove that the actions were logical and reasonable for a doctor to provide, not just that it’s a common treatment for a doctor to provide.
So, to prove medical negligence, you must prove that the doctor’s lack of care caused your injuries and that, should they have provided a competent level of care, you wouldn’t have been injured.
Need an Attorney? Flickinger • Boulton • Robson • Weeks Can Help.
If you’re a victim of medical malpractice, you should work with a personal injury attorney who can help you receive the compensation you deserve. One of the experienced attorneys at Flickinger • Boulton • Robson • Weeks can hold your negligent physician accountable in court while you focus on healing.
Schedule your free case evaluation today to see how Flickinger • Boulton • Robson • Weeks can help you. We have offices in Provo and South Jordan and a team of attorneys ready to fight for you. Call us at 801.500.4000 or visit our website to schedule your free consultation.