The Tort Of Medical Negligence | LawGranny.com

The tort of Medical Negligence

The Definition Of Negligence

The definition of negligence is the failure to do something that a [reasonable person] would do or the doing of something that a [reasonable person] would not do.

Members of the medical profession are held to a higher standard than other people because they have special training and experience in dealing with illnesses and accidents. If a doctor or other medical professional fails to use his or her knowledge and skills and causes injury or death, the victim or the family of the victim may be able to recover compensation for their losses.

In order to prove negligence, a doctor’s patient or family must show that:

(1) the doctor had a duty to use reasonable care;

(2) that he or she breached that duty and caused an injury, and;

(3) that the [victim’s] injuries were a result of the doctor’s actions.

The standard for determining whether a doctor breached that duty is what a reasonable person in the same or similar circumstances would have done. For example, if the patient had complained of severe pain, doctors are expected to order a battery of tests and x-rays. If a doctor fails to do this, he or she may be negligent and liable by law.

Accident victims or their families may be able to collect compensation from a negligent doctor even if the injury was caused by an accident.

Example Of The Tort Of Medical Negligence

For example, a surgeon may be liable for misusing a scalpel. If the doctor had used reasonable care in sterilizing medical equipment, the scalpel would not have been contaminated by fungus and the infection could have been prevented.

If a doctor or other medical professional is negligent and a patient dies as a result, the family of the patient may be able to recover damages even though the death was expected.

For example, if a patient dies of cancer and the patient is in an extreme amount of pain, it would be negligent for a doctor not to prescribe enough pain medication.

In a malpractice suit against a doctor for improper use of opiates, it would be negligence if the patient’s home was not properly secured because of the possibility of theft. The jury would have to decide if a reasonably cautious person in the same circumstances would have secured the home, and it is possible that the jury could decide that he or she would have.

If a patient is injured as a result of a poorly secured home, the doctor could be found negligent. If the patient’s home is not secured properly, the result is the same as if he or she was driving without a seatbelt, and the jury would have to decide if a reasonable person in the same circumstances would have used reasonable care.

The Doctrine Of Comparative Negligence

The doctrine of “comparative negligence” is a legal way of deciding how much blame for an accident should be placed on the plaintiff and how much on the defendant. Comparative negligence assigns fault based on a percentage. For example, if the plaintiff is 10% at fault for an accident and the hospital is 90% at fault, the jury would award the plaintiff 90% of his damages, or $90,000.

If a doctor is found to be more than 50% at fault in an accident, he or she is not entitled to compensation for his or her damages.

The Statute Of Limitations

The statute of limitations affecting a doctor’s malpractice is two years. If a doctor fails to perform an act that he or she negligently failed to do before the statute of limitations expires, he or she is still liable to the patient for that negligent act if it causes an injury. If a statute of limitations has expired, a doctor can no longer be sued by the patient, but the doctor’s insurance company can still sue him or her for damages.

If a doctor negligently fails to diagnose a serious illness, the patient may find out about his or her condition within two years. The statute of limitations for this type of case would expire within two years, and the patient or family would not be able to sue for damages.

If a doctor negligently misdiagnoses a condition or performs an inappropriate treatment procedure, he or she may still be liable for his or her damages if a nondisclosure statute has not expired. If a doctor does not tell a patient about a condition that he or she was aware of, he or she may be liable.

If an injured party is under the age of eighteen, the statute of limitations is extended by five years.

If a doctor intentionally causes harm to a patient or otherwise acts with malice, he or she is not entitled to the defense of a statute of limitations.

For example, if a doctor uses his knowledge about medicine to injure a patient on purpose, he or she would not be able to use the statute of limitations as a defense.

The doctrine of discovery occurs when a patient knows he or she has been injured and it is reasonably obvious that the doctor’s negligence was the cause of the injury.

For example, if a patient is aware of his or her diseased condition, and the doctor’s negligence was not the most likely cause of the illness, it could be considered a case of “discovery.”

If a patient is not aware that there is an injury, the statute of limitations would start when the patient discovered the injury.

If it is not reasonably obvious that a doctor’s negligence caused an injury, the statute of limitations does not start until the patient discovers the relationship between his or her injury and a doctor’s negligence.

For example, if it were not clear that a broken bone was caused by a doctor’s negligence, the statute of limitations would not start until it was reasonably obvious that the injury was caused by an act of malpractice.

The statute of limitations begins to run when a doctor’s act of negligence is discovered, provided the patient is reasonably aware that an injury was caused by the negligence.

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