Filing a legal claim against a doctor or professional medical facility can be a complicated process when the case comes down to establishing actual material evidence in the case. The difference between medical malpractice and medical negligence is slim, but there is a difference when the court assesses improper actions and failure to act within the scope of a reasonable duty of care. It is important to understand that doctors are considered professionals in the court system, which means their depositions are normally accepted as expert opinions. Civil tort claims require the plaintiff to prove by a preponderance of the evidence that the physician or other medical professional acted negligently or failed to act with respect to reasonable duty of care. 

Medical Negligence

Medical negligence most often addresses a medical professional’s failure to consider certain micro elements of treatment whether in diagnosis or prognosis, including developing a treatment regimen. An example would be prescribing a medication to which the patient may be allergic. This is a simple mistake, but it happens and can result in death. Another example is failure to run a common test that could result in an important diagnosis, such as finding a missed polyp.

Much of the testing that is ordered by doctors is a component of comprehensive information gathering concerning a potential illness. It is important for the patient to remember that winning a legal claim will require proving medical negligence in court per case particulars.

Medical Malpractice

Medical malpractice can refer to macro applications of material evidence, and a totality of the circumstances can impact a court decision. Multiple questionable errors can demonstrate a general breach of the duty of care by the physician or the facility. However, medical malpractice can also include proactive medical acts performed as a single event in the course of treatment, possibly resulting from a misdiagnosis.

The victims of medical malpractice in states such as California are limited to a $250,000 cap for “pain and suffering” resulting from a medical injury or neglected treatment. This is a punitive award. However, standard compensatory awards can be pursued, including loss of income due to the injury, and an experienced and effective professional malpractice attorney, such as Pius Joseph, knows how to craft a case that will often include multiple litigants. The cap covers acts of physicians, so medical facility negligence in the general care process is not necessarily included, although the facility may attempt claiming inclusion to the court.

The common idea is that negligence is what must be proven first and individually in the case. The final result involves consideration of all case particulars within a preponderance of the evidence, which is a 51-49 “weighing” of the evidence. Discreet points of negligence can carry a heavy burden in that weighing process, so a large amount of evidence from either litigant does not result in an automatic court decision.

Criminal Prosecution of Physicians

Physicians have historically been protected by the courts as medical professionals, being given extensive latitude in providing medical diagnosis and opinion. Medicine generally is not an exact science, and the courts have recognized this characteristic of the trade. The Consumer Protection Act of 1986 finally listed doctors and medical facilities as entities that should be held to a criminal evaluation for gross error or negligence.

There has been a upswing in prosecutions involving wrongful death claims in recent years, but the prosecutor must prove gross negligence just as civil plaintiffs often must do. Prosecutions are rare because of professional latitude allowed by the court. 

Teresa Stewart is a care giver and free-lance writer who enjoys sharing the results of her health and medical research with others. Pius Joseph Esq. is a personal injury lawyer in Pasadena, California who works with a team to get clients ready for trial. Each client’s case is handled with personal attention, and winning it the only option his firm envisions.

Photo #2 Credit: http://www.flickr.com/photos/86776105@N08/8018570871/