Medical Malpractice

Medical Malpractice

Medical malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury to the patient. Medical professionals generally to maintain professional liability insurance to offset the risk and costs of lawsuits based for medical malpractice.

The Medical Malpractice Claim

The Parties

The plaintiff is or was the patient, or a legally designated party acting on behalf of the patient, or-in the case of a wrongful death suit, next of Kin the executor or administrator of a deceased patient's estate. The defendant is the health care provider, which can refer to a physician, dentist, nurse, therapist, or hospital.

Elements

A plaintiff must establish all four elements of the tort of negligence for a successful medical malpractice claim:

1. A duty was owed - a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.

2. A duty was breached - the provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious errors.

3. The breach caused an injury - the breach of duty was a proximate cause of the injury that would not otherwise have occurred.

4. Damages - without damages, there is no basis for a claim, regardless of whether the medical provider was negligent.

Trial

Like all other tort cases, the plaintiff or their attorney files a lawsuit in a court with appropriate jurisdiction. Between the filing of suit and the trial, the parties are required to share information through discovery. Such information includes interrogatories, requests for documents and depositions. If both parties agree, the case may be settled pre-trial on negotiated terms. If the parties cannot agree, the case will proceed to trial.

The plaintiff has the burden of proof to prove all the elements by a preponderance (51%) of evidence. At trial, both parties will present experts to testify as to the standard of care required the damage, and other issues. The fact-finder (judge or jury) must then weight all the evidence and determine which is the most credible.

The fact-finder will render a verdict for the prevailing party and assess the compensatory and in some cases punitive damages, within the parameters of the judge's instructions. The verdict is then reduced to the judgment of the court. The losing party may move for a new trial. A defendant who is dissatisfied with a large judgment may move for remittent and the plaintiff can seek an additure. The winner can seek an award of discretionary cost. Either side may make an appeal from the judgment.

We have experience with medical malpractice cases. Contact us today for a free consultation. Tennessee has a one-year statue of limitations, so you need to act promptly

             

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