Health Care Reform: From an Attorney/Physician Perspective
- Published: Tuesday, 23 February 2010 12:31
Medical negligence claims evolve from polluted medical care. The allegedly substandard care leaves a carbon footprint which can be traced to its origins. Experience with common themes in medical malpractice lawsuits, and an intimate, first-hand knowledge of what proper healthcare delivery actually involves, allows a prospective analysis of negligence claims with the intent to avoid litigation, rather than sustaining the scars of a trial-and-error education.
Sometimes a physician or hospital has liability when using defective products or equipment, but this is not too common.
As background, the courts have usually imposed strict liability principles against those engaged in the production and commerce of defective products and equipment. They reason that it is unfair and unethical to expect an unsuspecting public to have the knowledge or skill necessary to determine product safety. It has been determined repeatedly that the public should be able to trust those engaged in the manufactur and sale of products. Because the public cannot be expected to protect themselves in such situations, those engaged in the production and commerce of such products and who benefit from their sale, must bear the cost of injuries. The resulting litigation becomes a so-called product liability action.
Bad medical outcomes do not necessarily justify a finding of medical negligence. There must be a negligent act that causes the bad outcome. Although such outcomes may suggest to a layperson that negligence has occurred, the attorney must prove that the patient received medical treatment that did not comport with the standard of practice and that the patient suffered significant damages as a result. Actually, there are four requirements, all of which must be present: duty; breach of standard of care; harm; and causation. Their presence or absence should be determined by professional medical case evaluation specialists like myself.