How a Medical Malpractice Attorney Decides to Accept a Case
Law Offices of David Drexler
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The practice of medical malpractice law falls under the area of personal injury law and practiced by a personal injury lawyer. Such attorneys who specialize in medical malpractice also call themselves "medical malpractice attorneys".
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The ongoing controversy regarding healthcare reform in our country has included intense discussion of medical malpractice. These debates have hi-lighted a need to better understand both the rudiments, as well as some of the more specific elements of medical malpractice.
One such element is how the medical malpractice lawyer decides if a potential case has merit. The decision relies largely on establishing the presence of four specific components. All four of the components must be present in order to successfully execute a medical malpractice case.
First, it must be established that a legal duty was in existence by two parties and that said duty was owed to the plaintiff by the defendant. The plaintiff may be the patient, their legally designated party, or a dead patient’s legal administrator. The defendant is the provider of service and refers not only to doctors, nurses and other allied healthcare professionals, but also medical corporations, managed care companies, hospitals, and clinics.
Second, it must be firmly established that the above-described duty was breached. The plaintiff’s attorney will compare what care or treatment the defendant rendered, as compared to the relevant “standard of care” in order to demonstrate that a deviation from the standard occurred. The standard of care is defined according to testimony from expert medical professionals. These expert witnesses typically give an account of what the average health care provider of reasonable competence would be expected to do under the same circumstances as in the case under review. Citations of relevant medical malpractice cases may also be submitted as evidence.
The next element that needs to be established is proving that the breach described in the second element caused an injury, and that this breach of duty was in-fact the cause of said injury.
The fourth and final component that will help the medical malpractice attorney decide if a potential case has merit is the presence of damages. Financial and/or emotional damages to the plaintiff must be clear and not pre-existing or the claim will not hold up in court.
The absence of any one of these four elements is a signal to the medical malpractice attorney that the case cannot move forward.
Understand these basic concepts of medical malpractice will become increasingly important as the healthcare reform debate continues to escalate and become more complex.
R. Klettke is a freelance writer. He writes about personal injury and medical malpractice law and other matters of jurisprudence.
Note: This article is not intended to provide legal advice upon which you should rely in making any decisions regarding the instituting or prosecuting of a legal claim. Laws and rules relating to the bringing of a claim vary widely from state to state. You should always contact a personal injury attorney to obtain information as to the rules and the laws pertaining to any claim you might have.
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