The law is made up of words that define and describe rules, actions, and punishments. In a medical malpractice case, there are certain words and phrases that have specific meanings relating to personal injury law. These terms help judges and juries determine if legally sound medical care was provided to the plaintiff (the person who claims injury in a medical malpractice complaint) by the defendant (the medical provider who is being sued).
If you are or a loved one is filing a medical malpractice complaint, or if you have lost a loved one due to medical malpractice, familiarize yourself with these terms. If you understand these five terms, you will be better able to help your personal injury attorney gather the evidence necessary to manage your case.
The medical provider in your case may be a surgeon, physician, dentist, nurse practitioner, nurse, or licensed therapist. If the person provided medical services in a medical facility—including the performance of tasks like lab sample collection, breathing treatments, and assistance to use the washroom—that person is considered a medical provider.
Facilities are also considered medical providers. Hospitals, clinics, and doctors’ offices are medical providers. Private agencies that deliver home health care are also classified as medical providers.
Arbitration Agreement or Release
Some physicians and other medical providers ask patients to sign arbitration agreements before the patients have surgery or other medical procedures performed. An arbitration agreement stipulates that, if you feel you have been injured by a medical provider, you must go through the provider’s chosen arbitration process rather than suing the medical provider in court.
There are other releases that health care providers may ask patients to sign, which are similarly intended to protect the medical provider in case you get hurt. Do not despair if you signed one of these agreements and now feel like you have a valid malpractice claim. In some cases, depending on the court’s decision, agreements and releases can be invalid.
For example, the North Carolina Supreme Court recently determined that an injured man did not have to go into private arbitration to resolve his personal injury case against a Fayetteville physician. The court ruled that the arbitration agreement was poorly worded and poorly explained to the patient, so he was free to seek damages from the medical provider in court.
Standard of Care
A standard is an approved model of conduct. In medical malpractice cases, the standard of care is defined as the kind of care any skilled and reasonably competent medical professional provides in like medical situations.
An example of a standard of care is the practice of hand washing between patients to avoid spreading germs and infections. If your medical provider did not wash his or her hands before treating or examining you and then you became severely ill, he or she may have breached the standard of care.
However, standards of care vary from facility to facility and from situation to situation. A surgeon in an operating room will be held to a higher standard of care than a paramedic providing medical care at the scene of an accident. A nurse in a well-appointed doctor’s office will be held to a higher standard of care than a nurse working at a summer camp with limited medical supplies.
For the court to agree to hear a medical malpractice case, there must be an expert review of your case. Essentially, a qualified person must agree that the standard of care was breached in your case. The qualified expert must agree that you or a loved one suffered damages because of that breach of the standard of care.
When you hire a personal injury attorney, he or she will assist you in obtaining an expert review if you do not already have one. Both you and your expert may argue that the medical provider did not use his or her best judgment, reasonable care, or due diligence in your case, even if the standard of care is otherwise acceptable.
Once the court has agreed to hear your case, your attorney and the medical provider’s attorney will begin to collect all of the evidence they need to present their arguments. This process is called “discovery.” Evidence usually stems from a variety of perspectives, including medical records, test results, and other documentation, to show what happened to you.
After the discovery period and during court, both sides will call expert witnesses to explain complex medical issues to the court. Prior illnesses and accidents you have suffered may be brought up in court. The defendant’s lawyers may allege that you engaged in behaviors that may have contributed to your injury. In some cases, prior malpractice convictions may be brought to trial as evidence against a medical provider.
In addition to the terms above, the most important word medical malpractice victims hear is “damages.” This word tells you that you will get compensation for your suffering. The court will award punitive damages as a way to punish the medical provider for his or her negligence or lack of care. Additionally, the court will award compensatory damages to pay you back for the money you have paid for medical bills, lost wages, and other expenses related to your injury.
Hardee, Massey & Blodgett, LLP is your best advocate for your medical malpractice lawsuit. Contact our law office at 252-378-2525 to schedule your free consultation.