Medical malpractice is a part of personal injury law. However, it is much more complex than other cases in this category. There are some clear similarities, particularly in as such that both generally involve someone getting injured as the result of negligence, but there are also some very important differences between the two.
What Is a Personal Injury Claim?
A personal injury claim is a tort claim and this means that there are two main issues at play, which are liability and damages. You must be able to establish that the defendant is liable for the damages. Furthermore, you must be able to explain exactly what the extent and nature of the damages are. The tort system places a duty on the plaintiff to demonstrate both liability and damages before a claim can be heard.
In a personal injury claim, you must be able to show that an injury occurred as the result of the negligence of a third party. Everybody has a duty of care in various situations and if this duty of care is breached and results in an injury, you are entitled to be compensated for this. Do, however, watch out for states that have no fault laws, as they may have a different system.
Now, personal injury cases are all based around negligence. This means medical malpractice is a type of personal injury case. However, so are car accidents, slip and fall accidents, product recalls and more. As such, personal injury is far wider in scope than medical negligence.
A final thing to remember is that negligence does not always have to lie at the heart of a personal injury claim. Strict liability exists on the manufacturers of products. Hence, rather than having to demonstrate negligence, you will have to demonstrate a product fault in order to file a personal injury claim. Additionally, a personal injury can be based on an intentional wrong. For instance, a battery suit can be a personal injury claim. You can also win a claim for false imprisonment if you are falsely accused of shoplifting. While there is often a criminal element in these cases, the personal injury element will be held in tort or civil court.
What Is Medical Malpractice?
Medical malpractice is an element of personal injury law, and it is a highly defined element. According to the Journal of the American Medical Association, the third leading cause of death in this country is medical negligence, with heart disease and cancer coming in second place. Furthermore, they stated that some $3 billion was spent in payouts in medical malpractice cases in 2012, which equals one resolved claim every 43 minutes.
From a legal point of view, medical malpractice happens when a health care provider does not follow the “recognized standard of care” when treating a patient. A standard of care defines what a medical provider should be expected to do – or not to do – in specific circumstances. Essentially, it goes back to negligence. If a person can demonstrate that a medical professional was negligent in duty of care, a case of medical malpractice may be made.
The key in medical malpractice is proving that the negligence of the health care professional caused damages or injury to the patient. Someone who does not have a positive medical outcome does not automatically have a case of medical malpractice. Sometimes a patient has made a mistake or, sometimes, there simply isn’t anything that can be done.
Do You Have to Go to Trial?
In almost all cases, be they personal injury as a whole or specifically medical malpractice, the lawyers of both sides will attempt to settle the case out of court. This is for a variety of reasons, including cost and publicity. However, for plaintiffs, it is important to understand that their cases are very rarely successful. Some of the statistics show that:
• Some 200,000 people die every year due to medical malpractice.
• In only 15% of cases does a surviving relative file a claim for medical malpractice.
• Plaintiffs are successful in only 21% of cases.
These statistics do not paint a very pretty picture. It is also for this reason that it is absolutely vital to enlist the services of a very experienced attorneys who focus not just on personal injury but also on medical malpractice. They are also able to provide advice on what type of information should be gathered and where from. Most importantly, they must have knowledge on the statute of limitations in the applicable state. The statute of limitations determines how long after the malpractice you are able to file a suit and ranges from one year to six years. Additionally, most states have implemented what is known as the discovery rule to indicate the start date of the malpractice suit. This is another tremendous difference with a personal injury suit. The statute of limitations with personal injury starts on the day of the injury itself, not the day on which the injury was discovered as it is with medical malpractice.