You have probably heard the terms medical malpractice and medical negligence. While technically these terms are very closely related, they are legally two different causes of action depending on the nature or identity of the offending person. If you are consulting with a medical malpractice attorney, your attorney will review your case to determine which kind of claim you have and whether you are the victim of medical negligence or medical malpractice.
While the two terms both require that the same elements be proven, the identity of the individual being sued is very important.
Medical Negligence, or simply, Negligence, occurs when a provider of medical care or treatment fails to provide the care that another similarly situated provider would typically provide in the same or similar circumstances. This claim, however, applies only to those providers that are NOT governed by the MICRA law, which defines a health care provider as any person licensed or certified pursuant to certain sections of the California Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or licensed pursuant to the Chiropractic Initiative Act, or licensed pursuant to certain sections of the Health and Safety Code, or any clinic, health dispensary, or health facility licensed pursuant to certain sections of the Health and Safety Code.
Medical Malpractice, often referred to as professional negligence, occurs when a medical professional who is licensed under the above sections fails to provide care and services pursuant to the applicable standard of care which results in injury or harm to a patient.
The difference between these two claims is very important because the California MICRA law governs only claims for medical malpractice, and does not cover claims for medical negligence, or simply, negligence.
Lawsuits for medical malpractice and medical negligence are filed in civil courts. There are specific criteria that must be proven for a case to be successful. It is usually difficult to prove malpractice or negligence. For a medical malpractice attorney to help you win a favorable judgment, he or she must establish a causal relationship between the act of negligence and the injury that resulted.
Proving Medical Malpractice or Medical Negligence
To prove medical malpractice or medical negligence all four elements of negligence must be proven:
- Duty – The medical provider had an obligation or duty to the patient.
- Breach – The medical provider breached that duty.
- Causation – The patient suffered direct harm because of the medical provider’s breach of duty.
- Damages – The damages claimed are a direct result of the medical provider’s breach of duty.
Types of Damages
The injured patient might be entitled to various kinds of damages. The medical malpractice attorney will review your case to determine which damages you can claim.
- Special damages – These damages are concrete dollar amounts that can be easily documented, such as medical bills and lost wages.
- General damages – These damages can be harder to define and include pain and suffering.
- Punitive damages – The court can award punitive damages if extreme negligence was involved. This is less common in these types of cases, as negligence is usually characterized as unintentional conduct.
When a medical malpractice attorney is proving negligence, the lawyer will try to show that the medical professional failed to exercise regular discretion that would have been taken by a medical professional facing the same or similar circumstances or treating a patient with a similar condition. To prove a medical malpractice case, expert testimony will be necessary to show that a regular professional in a similar situation would have acted in a different manner to provide the requisite standard of care. If that standard of care had been provided, the patient wouldn’t have suffered the injury.
Are You A Victim of Medical Malpractice or Medical Negligence?
If you believe you have suffered injuries because of medical malpractice or medical negligence, you should consult with a Los Angeles medical malpractice attorney today. The Trial Law Offices of Bradley I. Kramer, M.D., is experienced in handling such cases. Call (310) 289-2600 today for a free case evaluation, so you can determine the best way to proceed with your case.