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Medical malpractice falls under the tort of negligence, and can take many forms. It can be based on an active action by the clinician (operating on the wrong body part, misdiagnosing a disease, prescribing the wrong medication, administering the wrong medication, etc) or it can be based on a failure to act (an omission) by the practitioner, including failing to diagnose, failure to follow up, failure to recognize symptoms, neglecting to order necessary lab work, etc). However, in order for a medical malpractice case to succeed, five essential elements must be met. Knowing what these elements are will help you to avoid a lawsuit for medical malpractice.
The 5 Essential Elements of Medical Malpractice
1) Duty: The first element requires that the practitioner owed a professional duty of care to the patient. This is assumed in any doctor-patient, or health care practitioner-patient relationship.
2) Breach: The second required element for a medical malpractice case is a breach of the duty owed to the patient. This breach can be in the form of an action or a failure to act.
3) Injury: The breach must cause an injury – the injury can be physical or emotional (psychological trauma, for example), but must have been caused by the breach of duty.
4) Deviation from Accepted Standard of Care: The fourth element requires proof that the practitioner acted in a manner contrary to the generally accepted standard for the profession. In other words, the clinician either did or failed to do something that a similar practitioner should have. For example, if all physicians order blood glucose tests as part of a standard exam, and one physician doesn’t and his patient is harmed by undiagnosed diabetes, that physician could be liable.
5) Damage: The final required element of a medical malpractice case is damage. Without any economic or emotional damage, there is no basis for a claim, even if the practitioner was negligent. Economic damages include medical bills, lost wages, inability to continue working, etc. Non-economic damages include things like pain and suffering and loss of consortium.
