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What Does a Medical Malpractice Attorney Do?

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When a person is a victim of medical malpractice, an attorney can help that person recover damages stemming from unnecessary medical bills, lost wages, lost services, compensation for pain and suffering and punitive damages. A medical malpractice attorney can help the victim produce evidence of malpractice and satisfy the burden of proof that the plaintiff must meet.

Medical malpractice is defined as negligent or improper medical care from any medical professional. It is most commonly associated with doctors and surgeons but can also include dentists, nurses, pharmacists or anyone else in a medical profession.

A medical malpractice suit has four elements that must be met:

  1. the plaintiff and his attorney must first prove that there was a duty of care
  2. that the physician violated the accepted standard of care
  3. that there was a compensable injury
  4. that the injury was the direct result of the substandard care

The first point is virtually never contested because by law there is a duty of care as soon as a doctor agrees to treat a patient. The third element of a compensable injury is also not heavily contested. Physical effects of the substandard care are generally easy to identify and prove, and medical bills and lost wages are easily totaled. Most of the litigation on this point centers around mental and emotional effects and the amount owed due to pain and suffering.

A medical malpractice attorney will do most of his work proving the second and fourth elements of a medical malpractice suit. The acceptable standard of care is now based on both the customary practices of local doctors and national standards. Standards have been adopted by medical specialty groups, and failing to conform to those standards constitutes negligence. A doctor choosing one acceptable form of treatment over another accepted form does not constitute negligence.

The most frequently contested aspect of a medical malpractice suit is proving that the injuries were directly caused by negligent or substandard care. The defendant is free to argue that the injuries were caused by external factors unrelated to the patient’s care. For example, a patient with an extensive family history of cancer cannot recover any damages for getting cancer himself unless he and his medical malpractice attorney can prove that something the doctor did was the direct cause of the cancer.

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