How to Keep Your Medical Practice Case Strong
You’ve trusted your doctor to take good care of you. You certainly didn’t expect your doctor to cause you harm, or make your existing injuries or illnesses worse. But yet, he/she did. You want to hold the doctor accountable for the pain and suffering he/she caused you and are considering filing a medical malpractice lawsuit. Prepare to make a strong malpractice case – but first, learn the most common types of defense used in medical malpractice cases.
Standard Negligence Defenses
Because medical malpractice falls under the umbrella of negligence, many of the defenses used against general negligence claims are also used against medical malpractice claims. The doctor’s lawyers will try to disprove the negligence by saying the care received by the patient was in line with the standards upheld in the medical profession, or that the patient’s injuries weren’t the result of a medical error.
If a medical professional can prove that your injury was caused by a negligent act on your part, the medical professional may have a valid defense against a malpractice claim. For example, this could include things like missing scheduled appointments, refusing to take certain tests or not showing up for the tests, not following doctor’s instructions for lifestyles changes (dietary, activity restrictions, etc.), or taking medicine that could interfere with treatment or not taking prescribed medication. A breach of informed consent on the patient’s behalf is considered patient negligence and can be used as a defense in a malpractice case.
Respectable Minority Principle
Sometimes medical professionals decide to use a new, less popular, or radical form of treatment in certain cases in order to effectively treat a patient. While the decision to use this treatment places the doctor outside of the medical mainstream, it does not necessarily mean the doctor is at fault. If the doctor can prove that a respectable minority of physicians practice in the standard of question, the physician could have a valid defense to a medical malpractice claim.
This principle could be applied to many clinical situations where there’s not an absolute right or wrong form of treatment. Which antibiotic to choose? Which drug to prescribe? Should the patient be admitted now or should the patient be sent home to recover? All of these are situations where one group of physicians may choose one avenue of treatment and care and another group chooses a different way. A physician who is not in the majority doesn’t mean the patient has received treatment outside the standard of care.
Good Samaritan Laws
A well-known legal defense used in many states is the “Good Samaritan” law, which protects doctors and other medical professionals who come to the rescue during an emergency situation. The medical professional is protected from civil liability should anything go wrong during the rescue. In this situation, the physician is acting as a Good Samaritan. Depending on state-specific laws, he or she likely would not be held responsible in court.
Statute of Limitations
State laws place time limits on how long you can wait before filing a medical malpractice claim. Some states say that the statute of limitations period begins when the injury is actually discovered, while other states say it starts when the malpractice occurred. It’s very important to understand how your state interprets the start of the statute of limitations period because if the medical professional can show that the statute of limitations has expired, the case may be dismissed.
The sudden emergency defense states that a person who is in a sudden or unexpected situation that requires immediate action may not use the same judgment they would if they weren’t in that situation.
Medical malpractice is a very complex and confusing area of the law. If you think you have a medical malpractice claim, and want to understand your legal rights and responsibilities as a patient, you can consult with an experienced medical malpractice attorney at Wolf & Pravato. We are happy to provide a free consultation.