There are four elements that make up a medical malpractice claim. They are the following:
- Breach of duty or any deviation from the standard of care,
- Damages suffered and directly caused by the breach of duty, and, finally,
- Financial loss caused directly by the damages resulting from the breach of duty.
They must all be proven for a medical malpractice case to be valid, and if even one of them is missing, a medical malpractice case is unlikely to succeed. Below, we will discuss each of the four elements in more detail.
The First Element of a Malpractice Case
The first element is duty. This addresses the duty that the physician or other medical professional has to provide their patients with the standard of care that is customary in their profession. There must also exist a doctor/patient relationship between doctor and patient for the patient to be able to expect that kind of standard of care.
The duty of care requirement also extends to institutions involved in people’s medical care, including hospitals, emergency rooms, private medical and dental practices, and everybody who works there.
The kinds of things that are part of a medical provider’s duty include keeping patients fully informed about their medical condition and treatments, including any possible risks of procedures that might be undertaken. Of course, they should also take great care while providing any and all treatments.
The Second Element of a Malpractice Case
The second element is the breach of the duty of care. This means that the medical care provider deviated from the standard of care that could have reasonably been expected. For example, they may not use the kind of diligence that similarly qualified colleagues would have used.
Such deviations could include misinterpretation of test results, failure to order the correct types of tests, misdiagnosis, and recommending or administering wrong dosage amounts of prescription medication. They may also use wrong surgical techniques and treat their patients improperly in other ways.
These kinds of issues are difficult for a patient to spot. That’s why you need a skilled personal injury attorney, who has experience with investigating these issues and can engage highly qualified experts to assist in the case.
The Third Element
The third element involves damages that were inflicted on the patient through the medical provider’s negligent action. There must be proof of a direct cause and effect relationship. These damages could be physical, emotional, or financial.
They may include hospital bills and other costs resulting from the original treatment, as well as additional costs that will come from treating the long-term effects of the medical negligence. Additional expenses may result from mental health therapy, physical therapy, and home care.
Other losses include lost wages and lost earning capacity, reduced ability to enjoy life, as well as other pain and suffering.
In addition to compensating the patient for any financial losses and their suffering, an experienced medical malpractice attorney can also pursue punitive damages, especially in cases of egregious negligence.
The Fourth Element
After proving all of the above, the patients and their lawyers must also prove that there was a direct cause and effect relationship between the negligent action and the resulting injuries and the damage they caused.
This is very challenging for the patient, but an experienced and skilled medical malpractice attorney, together with expert witnesses who have expertise in the involved specialties, can often make a powerful case for the patient. It is critical to have strong proof that cannot easily be swept aside by the defense. That’s key when it comes to the anatomy of a medical malpractice case.
The Statute of Limitations
As you can see, medical malpractice cases can be complicated and a challenge to pursue successfully. Evidence has to be assembled, which includes witnesses and medical records as well as financial statements. In addition, the right kinds of experts must be found.
For a heart injury, you’ll need a cardiologist, for a brain injury, you’ll need a neurologist, and so on. Assembling all these experts and materials can take a lot of time.
At the same time, you have to race against the clock of the statute of limitations. What’s more, you should take action and hire a lawyer as soon as possible because evidence is crucial and it can disappear.
What makes the statute of limitation even trickier is that sometimes, the damage caused by the negligent action is not immediately obvious and can in fact take years to be discovered. This is especially the case when surgical instruments and things such as gauze were left behind in the wound after surgery.
While the statute of limitation allows for such a delay, it only does that to a point. The regular statute of limitations for medical malpractice cases is two years from the date where the error occurred, while the time can be extended to three years in cases where the patient was not aware of the problem until later.
If a child younger than six was injured through negligence or medical malpractice, the patient’s parent must file the lawsuit either within 2 years of the error or when the child turns six years old, depending on which date is later.
In all of the above cases, whether it’s two years, three years, or the special case of a child under six, the deadline can be tolled or delayed for 90 days. To extend the deadline in that way, the patient or the patient’s lawyer must send a “Notice of intent to investigate” to every defendant involved in the suit, such as the medical provider, a staff member, or the hospital.
The notice must be sent by certified mail to the defendants’ normal place of business, and a return receipt must be requested. It must include the name of the defendants and a brief description of the issue that is under investigation. It also has to be sent before the statute of limitation expires.
What Else Should You Know?
You should also know that there is no cap on punitive damages in Delaware. And if the patient was partially at fault, they can still collect a proportionate percentage of damages, just as long as the patient’s share is less than 50%.
If you have been injured by a negligent healthcare provider and suffered severe damages, be sure to seek out an experienced medical malpractice attorney. Call or email us for a free case evaluation. We will be happy to talk with you.