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What is medical malpractice negligence?

While general practitioners, specialists, nurses and others in the medical field are, for the most part, stalwart professionals, sadly there are exceptions. The impact of medical professionals failing to uphold their oath and neglecting to care for patients can be devastating.

Depending on the circumstances of the case, harm could range from complications and additional unnecessary pain to permanent disability and even preventable death. This is known as “negligence in medical malpractice.” But what fits the legal definition of negligence? Is there a distinction between negligence and medical malpractice?

If you or a loved one have been impacted by a medical professional who failed to uphold their duty of care, you deserve to have your voice heard. Gerard Malouf & Partners can help.

What is negligence?

Negligence is a failure to exercise the care that another in the same position would prudently exercise. The harm caused by negligence is considered to be due to carelessness, rather than a specific intent or determination to cause harm.

Notably, the concept of negligence isn’t limited to the medical field and can be committed in any number of situations. For example, a driver of public transport could cause an accident through negligence. The harm caused to persons involved in the accident could be charged under the law, assuming it can be proven that most other drivers in the same circumstance would have been more prudent and avoided an accident.

What is malpractice?

While negligence can include misconduct in a variety of circumstances, malpractice is reserved for professionals who fall grossly short of their obligations — and harm others in the process. As a result, malpractice is often called “professional negligence”. If a licensed professional (such as a doctor, lawyer, or accountant) fails to provide the accepted standard of care and subsequently causes harm to the plaintiff, this form of negligence may be known as malpractice.

Medical malpractice is specifically used in reference to medical workers who have committed acts of negligence.

Medical malpractice claims are typically filed in civil courts, to acquire some form of monetary compensation for mental or physical injuries caused by the professional’s negligence. This kind of claim can be lodged against both the responsible individual — such as a general practitioner, orthopedist, neurosurgeon, gynaecologist, physiotherapist or chiropractor — and the institution they work for. In many cases, the institution will be responsible for paying out the claim if you are successful.

How can I prove medical malpractice?

While medical malpractice is, unfortunately, all too common, these cases can be difficult to prove. Doctors and nurses aren’t always successful in their work — death and injury are sometimes inevitable no matter their efforts — and protections are in place to shield them from some litigation.

Specific regulations vary from state to state. New South Wales, for example, typically places a limitation of three years to make a claim. Notably, the state has expanded the definition of “negligence in medical malpractice” to include not only physical injury but psychological as well.

Overall, to win a favorable judgment, you must be able to prove four elements:

Duty: It must be clearly shown the defendant had a duty or an obligation. In a medical malpractice situation, the attending medical professionals have a moral duty of care that is a part of their profession.

Breach: It must be proven that the defendant fell short of the expectations of their duty.
Causation: A causal link must be made between the harm suffered and the breach of duty.

Damages: The damages being sought must be directly related to the harm caused.

One of the key ways courts establish medical malpractice is by relying on expert testimony that speaks to expected norms of the medical field. If effective, this testimony will make clear how the medical professional involved in the case fell short of these expectations and how this breach of duty of care correlated to the victim’s plight.

Settlement amounts in medical malpractice cases vary widely, depending on the severity of the negligence and the damages you claim for. Damages are awarded based on three definitions:

Special: This includes damages directly related to costs arising from the harm caused. Some examples are the costs of initial visits to a hospital and related specialists and long-term care, including physical therapy or at-home care.

General: Also called “pain and suffering” damages, related to the emotional impact of your ordeal.
Punitive: These damages are awarded by a court in rare circumstances where the negligence was especially extreme, or gross in nature. This category is typically paid out in a lump sum.

Victims can also typically claim damages for any wages and superannuation they missed out on as a result of their injuries. If your injuries will prevent you from working for an extended period of time or permanently, you can also make a claim for wages and superannuation that will be lost in the future.

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