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When a patient wishes to sue a medical professional for malpractice, he or she must first consult an attorney. Most malpractice attorneys work on a contingent fee
Contingent fee—A method of compensation in which an attorney is paid only if damages are awarded to the client. Contingent fees are usually a percentage of the gross amount of the award.
Defendant—The party sued or accused in a court of law.
Plaintiff—The party initiating a lawsuit in a court of law.
Prescriptive authority—Legal authority granted to advanced practice nurses to prescribe medication.
Tort—A wrongful act that causes injury to another person's body, property, or reputation, for which the injured party is entitled to seek compensation. Malpractice is classified as a tort in the legal system of the United States.
basis. This term means that the attorney is paid only if the patient recovers damages from the professional. The attorney usually receives a percentage of the gross award—sometimes as high as 30–40%.
The attorney will obtain a detailed medical history from the patient, including the names of all physicians and hospitals who have treated him or her. The most important step is securing a medical expert. The attorney will consult someone certified in the relevant medical specialty in order to determine whether there is sufficient evidence that the defendant medical professional did indeed injure the patient.
If the medical expert concludes that there is evidence of malpractice, a lawsuit is filed. If the plaintiff and the defendant cannot resolve their differences outside of court, the case will go to trial before a judge and jury.
Four elements must be proven in court in order for a verdict of malpractice, or negligence, to be issued. These include legal duty; breach of duty; causation; and damages.
Legal duty to the patient is initiated upon establishment of a provider-patient relationship. For example, if treatment is begun, a contract is implied to exist between the health care provider and the patient. If health care professionals assist at the scene of an accident, they are covered under Good Samaritan law if the assistance is given freely and in a situation where other medical personnel and equipment are not immediately available. In most states, there is no legal duty to assist in such a situation, although there may be an ethical or moral duty. Good Samaritan law offers protection against litigation for simple negligence in order to encourage health care professionals to stop at accident scenes, but any action considered gross negligence is not protected.
Breach of duty is determined by comparing the action in question with the established standard of care. These standards are developed by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) and State Nurse Practice Acts, and are communicated by professional associations, professional journals and textbooks, job descriptions, and organization policies and procedures.
Proving causation requires evidence that the health care provider's negligence directly caused injury or harm to the patient. Even if breach of duty can be established, malpractice is not proven unless causation is confirmed.
The last step in proving malpractice is verifying that the patient suffered disability, disfigurement, pain, suffering, or financial loss as a result of negligence. In some states, any of the defendants may be required to pay 100% of the award, even if they were only slightly negligent in comparison to the other defendants. This rule is gradually being abolished, however, and usually liability is distributed based on degree of fault.
Author Info: Abby Wojahn R.N.,B.S.N.,C.C.R.N., The Gale Group Inc., Gale, Detroit, Gale Encyclopedia of Nursing and Allied Health, 2002This feature is for informational purposes only and should not be used to replace the care and information received from your healthcare provider. Please consult a healthcare professional with any health concerns you may have.
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