Proving negligence in a malpractice suit is based on the custom of the professional field, specifically how a practitioner in the same position, with the same skills and knowledge, would have acted. There is a nearly circuitous argument to this analysis that confuses even some attorneys. Therefore, it is no wonder that you have questions.
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How Is Negligence Determined?
In order to prove negligence in a court of law, it is necessary to show that the medical professional breached the standard of care. This typically is done through the expert testimony of someone in the field who would have knowledge of what a professional in the same situation would have done. Unfortunately, this means that the standard is based on the opinion of those individuals who may be in the same medical specialty as the individual responsible for violating the standard of care.
Factors to Consider
It is strangely unscientific, considering how prominently science featured into everything leading up to the harm. There are also some definitive factors that can be analyzed in this process, which include:
- Intent. This looks at the motivation behind the actions of the medical professional. Were the actions taken merely negligent or reckless or did they rise to the level of intentional or even criminal behavior?
- Competency. The level of skill of the medical practitioner is taken into account during the review of the case. Although it may seem unfair, different circumstances dictate what level of competency will be required. For example, did the act that led to the devastating harm to your child occur in a state-of-the-art facility known for expertise in pregnancy and delivery, or was it a rural hospital with limited staff and funding? This does matter, at least in some states. In general, the review looks at whether the wrongdoer was properly trained, certified in the relevant field, and equipped with the skills necessary to perform the required actions.
- Operational compliance. This standard looks at the organization or facility and whether the proper policies and procedures were in place to minimize any harm to your child. The review considers the existence of the policies, the communications of the procedures so that everybody had the correct information, and the oversight of the staff to ensure compliance with the policies.
- Inherent danger. There are times when doctors and other medical professionals are going to have to take extraordinary actions to preserve the health and lives of you and your baby. The question to be asked in this circumstance is whether these actions were within the reasonable margin of error and encompassed an acceptable level of risk. If not, then there was a breach of the standard of care.
- Extraordinary circumstances. Consideration will be given to whether there were extenuating circumstances that impacted your situation. This could include a medical emergency or “Acts of God” that could not be anticipated or prevented.
- Timeliness. Of course, in situations involving the health and well-being of your child, timing is everything. Would actions taken hours, or even minutes earlier have led to a different outcome? Was the delay caused by a failure on the part of your doctor or other medical professionals? This could have happened for a myriad of reasons. Was there a lot going on at the time that you needed the full attention of everyone to ensure a healthy baby?
- Options. In most situations, there are choices – standard or alternative courses of action. The question becomes, “Would a reasonable practitioner have made a different choice?” and “Were other options more likely to produce a positive outcome available but not considered, purposefully not chosen, or rejected?”
- Industry guidelines and professional standards. Despite the seeming nebulous nature of the standard of care, there are guidelines and standards that are codified, and to which practitioners will be held. A review will consider whether the actions taken were within the acceptable industry standards and professional licensure guidelines. Basically, you must consider whether there was a deviation from accepted practice standards.
Stern Law, PLLC can help you get past the legal gymnastics and get justice for your child. For a free review of your medical malpractice claim, please call (800) 462-5772 today.