I often get questions about possible legal claims arising out of poor outcomes from medical treatment. The mere fact that a complication, injury or death occurred during medical treatment does not necessarily justify a Medical Malpractice case. Instead, Pennsylvania law requires proof of several elements and the sworn testimony of expert witnesses before a case will be decided by a jury. The following is an outline of the important legal concepts in a Medical Malpractice case.
In order to have a viable Medical Malpractice case, a patient who has had a poor outcome from medical care must prove three things: (1) a Violation of the Standard of Care; (2) that the Violation was a Factual Cause of Damages or Increased the Risk of Harm; and (3) the extent of the Damages. Pennsylvania also has a special rule requiring a patient to obtain a Certificate of Merit from an expert when pursuing a Malpractice claim.
Violation of the Standard of Care
Every medical professional must have the same knowledge and skill and exercise the same care normally used in that profession. The professional must also keep informed of the contemporary developments in the profession and use current skills and knowledge. So, every doctor, nurse, therapist, etc., must have the knowledge and exercise the skill of his/her peers. This concept is commonly referred to as the Standard of Care.
In a Medical Malpractice case, the patient bears the burden of proving a Violation of the Standard of Care – that something that a peer of the Defendant would not have done was done, or that something that should have been done was not done. This Violation must be proven through the testimony of an expert witness. A professional in the same field as the Defendant must explain why the Standard of Care was violated.
Once a Violation of the Standard of Care is established, the patient must also prove that the malpractice was a Factual Cause in bringing about harm. Malpractice is a Factual Cause when it played an actual, real role in harming the patient, that there is a connection between the Malpractice and Harm.
Increased Risk of Harm
In Malpractice cases alleging a failure to timely diagnose or treat an illness, it may be impossible to prove whether malpractice actually caused harm. In those cases, a patient can still prevail if it can be established that the malpractice Increased the Risk of Harm. For example, if malpractice was committed in failing to timely diagnose and treat cancer, and this increased the risk of the patient dying or not achieving a full recovery, the doctor can be held liable for the Increased Risk of Harm.
Like with proving a Violation of the Standard of Care, expert testimony is used to prove Factual Cause or Increased Risk of Harm.
The final element of a Medical Malpractice case is Damages. To have a viable Malpractice case, the patient must have suffered Damages as a result of the Malpractice. The jury can award these Damages as compensation to the patient. Recoverable Damages include Past and Future Medical Bills, Past and Future Lost Wages and Earnings Capacity, and Past and Future Pain and Suffering, Embarrassment and Humiliation, Disfigurement and Lost Ability to Enjoy the Pleasures of Life.
Certificate of Merit
To protect medical professionals from unwarranted lawsuits, Pennsylvania has a Rule of Procedure requiring timely filing of a Certificate of Merit either with a Malpractice lawsuit or shortly after the filing of the lawsuit. The Certificate of Merit must be signed by an expert witness and verify that, after reviewing the matter, the expert believes that there is a basis to conclude that the care, skill or knowledge exercised by the professional in the treatment of the patient fell outside professional standards and was a cause in bringing harm to the patient. Pennsylvania’s Certificate of Merit Rule prevents the filing of frivolous lawsuits because an expert is required to review the case and certify that it has merit before the case proceeds through the court system.
The following article is informational only and not intended as legal advice. Speak with a licensed attorney about your own specific situation. © Copyright 2011 MacElree Harvey, Ltd. All rights reserved.