Aspects of Medical Malpractice - Harm - injury

Aspects of Medical Malpractice – Harm – injury – death to a patient

Aspects of Medical Malpractice
Medical malpractice happens when a medical practitioner neglects to provide appropriate treatment, fail to take an appropriate action, or provides substandard treatment that leads to harm, injury, or death to a patient.
The medical malpractice could be in diagnosis, medication dosage, health management, treatment, or aftercare.
A number of criteria must be present for medical malpractice to be considered which are:
Negligence leads to injury: medical malpractice claim stipulate that negligence caused injury or harm, and that, without the negligence, it would not have happened.
Not following standard of care: medical practitioner should adhere to certain standards, otherwise face an accusation of negligence.
The sustained injury resulted in damaging consequences: The patient must show that the injury or harm caused by the medical negligence resulted in considerable damage.
The damage may include but not limited:
constant pain
suffering
enduring privation
loss of income
disability
It is worth noting that dissatisfaction with the treatment outcome does not imply malpractice. Wherein malpractice is only considered when there is negligence that causes the harm or injury.
Wherein if a surgeon does not inform the patient that a surgical procedure involves a 25-percent risk of losing a limb, and the patient loses a limb, the doctor will be liable, even if the operation was done perfectly. This is because the patient may have opted not to go ahead if they had been informed of the risks.

Parties involved in Malpractice Case
The claimant is the person who complains. Usually this can be the patient himself, a legal representative who acts on the patient’s behalf, or in case of death of the patient, the inheritors or administrator of the patient’s estate.
In legal terms, the claimant is the person who files a case against another in a court of law, the person who initiates the lawsuit, the one who is suing.
The defendant is the party who is being under trial. In a medical malpractice case it is the health care provider, which could be a physician, a nurse, a physiotherapist, or any medical practitioner. Even those who were only “following orders” may be liable for negligent acts.
The prevailing party is the party who wins the case, whether the claimant or the defendant. Wherein, If the defendant wins the case, the lost claimant will receive no compensation.
The losing party is the party who loses the case.
The decision-maker is the judge.

Essential elements required to file a lawsuit
The claimant has to prove that four elements are present to succeed in a medical malpractice claim:
A duty was owed by the health care provider or hospital
A task was breached, because the medical practitioner or hospital did not fulfill the expected standard of care
The breach leads to an injury, and it was closely linked to the injury
Considerable damage resulted for the patient, which may be physical, emotional, or financial

The legal procedures:
First step, the claimant or their legal representative must file a lawsuit before court of law.
Prior to the beginning of trial, the claimant and the defendant both have to present information through discovery. This may include requests for any related documents, investigations, and reports.
The case can be settled out of court, if both parties come to an agreement. In this event, the case will not go to trial. Otherwise, the case will proceed to trial.
The claimant has to present proofs that the defendant committed act of negligence. In most trials, both the defendant and claimant will present experts to illustrate whether the standard of care was carried out or not.
The court shall then take into consideration all the evidence and render it is decision regarding the prevailing party.
A verdict shall be issued by the judge for the prevailing party i.e.; the judge will decide who wins. If it is the claimant, the judge will then determine damages and mount of compensation. And the losing party may appeal the rendered decision.

Type of damages can be claimed by the claimant
The claimant can be awarded compensatory and punitive damages:
Compensatory damages: may include material damages, including lost earning capacity, expenses of life care, and related medical case expenses. Usually, compensation are assessed for both past and future losses.
Compensatory damages may also include non-material damages, which include injury itself, psychological and physical harm, such as inability to walk, losing one of extremities, extreme pain, and emotional distress.
Punitive damages: are only granted if the defendant is found guilty of malicious or intentional misconduct. Punitive harm is a form of punishment and pertaining compensation is added to actual damages.
In general lawsuits tend to be costly, time consuming, and stressful. Wherein anyone who is thinking of starting a lawsuit should consider all positive and negative aspects prior to taking any legal procedure. Accordingly, if the sustained injury is minor, the patient may spend more on the lawsuit than the actual recovered compensation amount.

Types of malpractice errors
Examples of cases where negligence may lead to a lawsuit:
misdiagnosis or failure to diagnose
discharge without fulfilling treatment plan.
unnecessary or faulty surgery
insufficient or inappropriate medical tests or comprehending results
lack of follow up
wrong prescription dosage or the wrong medication
leaving medical equipment or other things inside the patient’s body after surgery
enduring potentially fatal infections acquired during the hospitalization
performing operation on the wrong part of the body
the patient suffer persistent pain after surgery
pressure ulcers, or bedsores

appropriate measures should be followed at the hospital to reduce the incidence of infringements by hospitals such as the applying guidelines for best practice, and sustained implementation of hand hygiene rules.
patient consent
wherever the patient does not provide informed consent to a certain medical procedure, then the physician or medical practitioner may be liable if the procedure results in harm or injury, even if it was carried out perfectly.

Attorney / Mohamed Al Marzooqi
Mohamed Al Marzooqi Advocates & Consultancy
Lawyer in Abu Dhabi, Dubai – UAE

Aspects of Medical Malpractice – Harm – injury – death to a patient Medical malpractice happens when a medical practitioner neglects to provide appropriate WhatsApp: +971555570005