Generally, when a patient files a law suit against a doctor/ hospital in account of negligence towards their medical services. The facts are usually, too complex for the non-doctors (the law firm, judge etc) to determine if the doctor is liable for the ill health of the patient. Thus, in order to give a genuine verdict, there is a need of a Specialist. A person not bias towards the doctor’s services and at the same time, aware of all the medical procedures. The Medical Expert Witness determines in such a case, if the convicted doctor is liable to the patient’s injury.
These days, almost all Medical Malpractice cases require the testimony of an Expert Witness. The Judge and rest of the court find it highly difficult to resolve the case, as they find it too complicated to come up with a conclusion Whereas, the Medical Experts are aware of all the technical aspects in the case, which is highly essential to determine in who’s favor the case is.
B. What exactly is Medical Malpractice?
In Medical Language, “Jason Konvicka: Medical malpractice occurs when a health-care provider deviates from the recognized “standard of care” in the treatment of a patient. The “standard of care” is defined as what a reasonably prudent medical provider would or would not have done under the same or similar circumstances.”
In lawman language, ” Medical malpractice is professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient, with most cases involving medical error.”
1. Medical Malpractice Payouts Report – 2003-2013
Now, there is an interesting statistics provided by the Data Bank National Practitioners (NPDB), stating the number of malpractice payment reports (MPR) and its Adverse Action Reports(AAR) filed in a span of 10 years; from year 2003-2013. The data covers almost all states in U.S. stating the number of citizens, number of practitioners, their malpractice payments data and adverse action and reinstatement restored.
Following the report, provided below, is the link to the complete data:
2. How to determine whether it is a case of Malpractice?
In most of the cases of “Wrong Medication”, patients find it hard to determine which outcome can result to a case of malpractice. Though, it is rightly said, “Malpractice is a act of negligence or omission by the health care provider.” , but, just having a bad experience or having minor damages cannot prove to be an act of malpractice.
There are cases where, the doctor/health care provider can immediately ask for an apology when he realizes that an error has occurred. Considering the fact that the doctor/ heath care provider immediately accepted his mistake, asking for an apology, can reduce the chances of facing a trial.
Therefore, to make it easier to understand, what kind of cases can be registered, a broader perspective of characteristics are provided here under:
a. Proper Standard of Care: Every heath care professional is supposed to follow recognized medical standard while proving care to their patients. The medical profession recognizes these standards.
When it is observed, that these medical standards have been breached or violated or not performed properly, it can stand a chance for negligence
b. Injury due to Malpractice: Now, there is a very thin line between injury cased due to a ‘feeling’ of negligence and injury caused due to negligence in reality. Most of the times, it gets confusing as to what was the reason of injury. A suit cannot be filed on account of ‘a feeling of negligence’. The plaintiff should be sure enough to prove that the injury caused was by negligence of the doctor/s.
c. Informed Consent: Before every surgery or any medical procedure, a form of “Informed Consent” is to be signed by the patient. This form states, that the doctor has gone through the effects, side effects, damages or risks caused by carrying forward the procedure. Now, if the doctor omits few details or information regarding the procedure and/ or the procedure results in harm or injury, the patient can file a suit against him as a case of malpractice.
d. Misdiagnosis or Delayed Diagnosis: When a doctor gives an improper diagnosis or does not at all give any diagnosis on time, the patient losses quite an opportunity to get proper treatment or even get treated. In this case, if any harm or injury occurs to the patient, he/she can file a suit against the doctor stating an act of malpractice.
e. Medication Error: According to a study in 2006, medication errors harm approximately 5 million people in the United States every year. There are many ways that a medication error can occur.
- If the doctor prescribes the wrong medicine.
- Medicines prescribed it correct, but the nurse administers the wrong quantity.
- Medication prescribed to treat a misdiagnosis.
C. When is Medical Expert Witness Needed?
When a patient has to win a suit against his doctor/hospital. He has to gather all the findings and proofs on his own. Apart from the doctor and the patient (having highly limited knowledge regarding his injury), no one apart from them are aware of the ‘technical’ or ‘medical’ terms. This is when the need of an expert eye is required. The expert looks into the matter as deeply as possibly, tries to find out the error made and by whom. He presents himself in from of court and gives his utmost unbiased opinion about the case. The Medical Expert Witness plays a very important role in the proceedings of the trial. However, whether experts are needed or not, entirely depends on the circumstances of the case, the concepts and findings, the issues in the case and the budget of the defendant.
The major elements included in Malpractice case are :
- The Plaintiff: The person who brings a case against another in the court, it may be the patient itself, or a person standing on behalf of the patient ( in cases of death or any such severe circumstances).
- The Defendant: The party who is been sued or charged. It consists of doctors, nurses, practitioners, hospitals or even those who were merely following the orders.
- The Prevailing Party: The person who wins the case. It may be – the defendant or plaintiff.
- The Losing Party: The other party, other than the winning party, is considered as the Losing Party.
- The Fact-Finder: The Judge.