Knowing When You Have A Case For Doctor Malpractice

by Jon Arnold
Doctor malpractice seems to be a problem that has been growing exponentially since the 1980s. While the amount of litigation seems to have gone up, in actuality increase in this type of lawsuit is from better-educated consumers not willing to accept the old-fashioned notion of "the doctor is God".


If you are suspicious of doctor malpractice, become as educated as you possibly can about the condition the doctor says you suffer from. Before undergoing any major type of procedure, try to secure a second opinion from another doctor (preferably someone who may not necessarily be from the same region or familiar with the doctor you are currently seeing). Ask the second doctor explain to you in detail any terms you may not be familiar with. If the first physician is unwilling to spend the time necessary to adequately explain what you need to know, or speaks only in "medicalese" (medical terminology designed specifically to confuse you or overwhelm you to get his way), be suspicious. Too often, this type of doctor is far more interested in how you affect research or areas of study that he is interested in and not in treating you as a whole individual.

More and more states are beginning to offer registries where a consumer can go online to check the reputation of any given doctor. These registries contain such information as the number and types of malpractice claims against the doctor, how many were settled, and whether or not the doctor lost his/her license in a particular jurisdiction. Sadly, it is not unknown for a doctor who lost his license in one state simply to pull up stakes and set up a practice in another. Access any of these registries you might find online and make sure that your doctor isn't on one of them.

Although federal legislation known as the "Health Insurance Portability and Accountability Act" (HIPAA) was enacted by the U.S. Congress in 1996, and it mandates that patients can access their medical records, it does not specify the manner in which this access is given. Most patients get stuck visiting the medical records departments of caregivers to obtain paper copies of their charts at whatever cost the caregiver wishes to charge. Some physicians and medical centers have withheld information from those who may have a right to it, and there have been cases where certain institutions guilty of doctor malpractice find ways to hide this potentially damaging information from the client.

Wherever and whenever possible try to keep as detailed notes as you can concerning such things as dates and times of treatment, any complications and how soon after treatment they might have occurred, and most importantly the names of the doctors who ordered the treatment in the first place. These notes will prove invaluable to any legal professionals who might be bringing a medical malpractice lawsuit on your behalf.

In order to bring a lawsuit, a plaintiff needs to establish all four elements of the "tort" (having to do with civil matters) law of negligence to file doctor malpractice claims.

First, a legal duty exists whenever a doctor undertakes the care or treatment of a patient. Secondly, the provider failed to conform to the accepted standard of care. This standard of care is established through expert testimony or by obvious errors in treatment (the doctrine of "res ipsa loquitur" or "the thing speaks for itself"). Third, the breach of duty was a main cause of the injury. Lastly, without damages (losses which may be monetary or emotional), there is no basis for a claim, whether or not the physician was negligent.

Members of the American Medical Association, complain about the number of lawsuits being brought in America today (few of which actually resulted in adequate penalties), the attorneys for the plaintiffs note that doctor malpractice claims are the only effective recourse to identify incompetent physicians since, historically, the medical profession is known for their refusal to aggressively discipline members.

About the Author

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