WHAT IS MEDICAL MALPRACTICE?
Most of us have certain expectations about how we would like to be treated at a doctor’s office or a hospital. We would all like to be treated with respect, care and compassion and we certainly don’t want to be kept in the waiting room for hours. One expectation that we should also have is the expectation that we will be given the best care possible under the circumstances. What happens if we do not get that level of care and somebody gets hurt? This is the question that faces many individuals and families across the country, as statistics show. We often get calls from families in these very circumstances and it is not unusual for these families to tell us at the beginning of the conversation that they are not sure what to do or how to proceed. This is the start of a conversation that eventually turns to whether or not the doctor or the hospital in questions has committed what’s known as “medical malpractice.”
So what is medical malpractice? The first thing to understand is “medical malpractice” is the same thing as “medical negligence.” What I mean is that in order to have a case, the patient does not have to prove that they were intentionally hurt by a doctor. They just have to prove that the doctor was negligent. The patient also does not necessarily have to prove that there was some type of extreme or outrageous facts involved. They must only prove that the doctor was negligent. In terms of the law, they need to prove that the doctor fell below something called the “standard of care.” So what is the “standard of care”?
Generally speaking, the “standard of care” means that doctors have an obligation to provide the same care that would be rendered by an ordinary and careful (i.e., reasonable and prudent) doctor acting in the same or similar circumstances. West Virginia defines the standard of care through a statute, which is typical of the definition of the standard. As the West Virginia Code states: “(a) The following are necessary elements of proof that an injury or death resulted from the failure of a health care provider to follow the accepted standard of care: (1) The health care provider failed to exercise that degree of care, skill and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances; and (2) Such failure was a proximate cause of the injury or death.”
Of course, the call to our office is only the beginning of the process. An important step in determining whether a case will be filed is the opinion of experts in the relevant area of medicine. Before instituting a lawsuit in either Ohio or West Virginia, an expert physician has to sign an affidavit saying that they have reviewed the case and determined that the physician was negligent. That’s because the standard of care that I discussed above must usually be determined by an expert in any particular case. Of course, finding and retaining the appropriate expert is one of the most important steps in any case. Every case is different and must be evaluated on its own.
If you or a loved one has been injured by a doctor or hospital, Bordas & Bordas would be honored to speak with you to help determine what your rights may be.
