medical-malpractice-411pxWhat is Medical Malpractice?

Medical malpractice is a “cause of action” or “tort” in Georgia by which an injured person may bring suit against their medical doctor for breach of the standard of care.  There are three elements to an action for medical malpractice that the plaintiff must prove: (1) a duty that the doctor owed the patient; (2) breach of that duty by failing to exercise the requisite level of skill and care; and (3) an injury that is “proximately caused” by the breach. O.C.G.A. § 9-3-70 defines medical malpractice as “any claim for damages resulting from the death of or injury to any person arising out of (1) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person; or (2) Care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment.”

What Constitutes Medical Malpractice?

Medical malpractice occurs when the medical care provider breaches the required level of care. Each medical provider must exercise the same level of care as an ordinary care provider would in that same or similar circumstance.  In simple terms, this means that your doctor must provide you with the same care as a doctor of ordinary skill would do. If this is breached by, for example, the doctor failing to diagnose you with a condition that an ordinarily prudent doctor would have and there is injury and damage caused by that breach, then you may have an action for medical malpractice.

What Do Medical Malpractice Lawyers Do?

Medical malpractice lawyers work with their clients and health professionals to build a case. Medical malpractice is a particularly challenging area of law, with estimates that the defense wins over 90% of the asserted claims. Hiring a medical malpractice attorney is important because there are specific and, somewhat, tedious rules governing these torts.  In addition, proving the standard of care can be challenging. Generally, the plaintiff must prove that the level of care provided by the doctor fell below what an ordinarily prudent doctor would have done under the same or similar circumstances. Sometimes, breach of the standard of care is quite obvious, such as when a doctor failed to remove a surgical tool.  Many times, however, the plaintiff and the defendant will disagree as to the appropriate standard of care, with a “battle of the experts.”

Because of this, it is particularly important to hire a competent Atlanta medical malpractice attorney at the earliest opportunity.  It takes time to interview witnesses, review medical records, and obtain an expert opinion as to whether the standard of care was breached. This can be particularly challenging because, while the defendant has readily available access to their colleagues who generally will support their position, the plaintiff must locate a doctor willing to testify against a colleague. This is often a challenging proposition. Only after a competent expert is found can the plaintiff begin to negotiate a resolution or prepare to file suit.

What is the Basis for Most Medical Malpractice Claims?

Medical malpractice suits arise from any act or omission of a medical care provider that falls below the standard of care and proximately causes injury or death. There are many different types of medical malpractice cases, including surgical error, misdiagnosis, wrongful death, birth injuries, birth deaths and many more.

What are the Chances of Winning a Medical Malpractice Suit?

The merits of each case must be determined on a case by case basis. However, Medical malpractice is a difficult area of law for a plaintiff. Statistics show that defendants win 90% or more of the cases. It is important to hire an experienced, professional medical malpractice attorney. This is a tough business.

How to Start a Medical Malpractice Lawsuit

There are many hurdles that must be cleared before a medical malpractice suit is actually filed. Unlike a simply negligence case, in which a plaintiff can simply allege the defendant was negligent in the complaint, a plaintiff in a medical malpractice case must engage a competent expert who is willing to testify that the defendant medical provider committed malpractice. This can be particularly challenging because, while the defendant has readily available access to their colleagues who generally will support their position, the plaintiff must locate a doctor willing to testify against a colleague. This is often a challenging proposition. Only after a competent expert is found can the plaintiff begin to negotiate a resolution or prepare to file suit. Once a competent expert is on board, a complaint may be drafted, filed, and served like any other lawsuit.  There may be certain special pleading requirements which a medical malpractice attorney can advise you on.

What Does Medical Malpractice Insurance Cover?

There are many different types of medical malpractice insurance. Like any other types of insurance, the coverage provided depends on the policy terms.  It is important to note that Georgia law does not require medical providers to carry insurance.  While many providers do carry insurance for medical malpractice, some providers may elect not to obtain malpractice insurance.  Under Georgia law, the Medical Board must maintain whether a practitioner has medical malpractice insurance. This information is publicly available through the Board. If possible, before undergoing a procedure, it is important to determine if your practitioner has insurance.

What to do if You Suspect Medical Malpractice

If you suspect medical malpractice, it is important to act quickly and contact a medical malpractice attorney. Medical malpractice cases are complex and can only be assessed by a competent attorney.  It takes time to obtain the requisite records, discuss with an expert, and determine whether malpractice occurred. There are time limits on these actions which we discuss in our statute of limitations article.

How Do I Report Medical Malpractice?

Medical malpractice is a tort available to compensate injured parties if the plaintiff proves the elements. In order to obtain relief, you must hire an Atlanta malpractice attorney, build a case, and either negotiate a resolution with the defendant or file the case to be resolved by a jury.  The Georgia Composite Medical Board permits persons to file a board complaint and “report” the issue. However, this will not provide monetary relief. https://medicalboard.georgia.gov/how-file-professionals-complaint