Medical malpractice is an act or omission by a health care provider in which the treatment or lack of provided falls well below the acceptable standard of practice as defined in the medical community. This act must cause injury or death to the patient and in most cases involves an error on the part of the medical provider.
A plaintiff has the burden of proof in establishing all four elements of tort to be successful in a medical malpractice claim. The elements of tort in medical malpractice are common throughout the area of tort:
- A duty must be owed: There must be a reasonable legal duty existing whenever a hospital or health care provider undertakes care or treatment of a patient.
- A duty must be breached: The provider failed the reasonable standard of care.
- The breach caused an injury: The breach of duty was a direct cause and the proximate cause of the injury
- Damage: priligy online
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Without damage there is no basis for a claim, regardless of whether the medical provider was negligent.
Damage can occur without negligence. When someone dies from a fatal disease the health care provider is not compensable because all of the above four elements have not been proven. The legal application to medical negligence claims depends in whole on the nature of the claim. Is the alleged tortfeasor a "qualified healthcare provider? Some states may differ in their definition.
If the alleged tortfeasor is a “qualified healthcare provider”, the claim may be governed by the states recoverable damage cap. The states’ cap frequently applies not only to all non-economic damages like pain and suffering but also to claims for lost wages. If the claim is not against a qualified healthcare provider or does not involve a “medical malpractice” claim (as defined by the MMA); it will be governed by the state general tort law.
For insurers, this threshold analysis of MMA-coverage is important because it will determine whether the recovery of damages for the alleged tort will be subject to the MMA’s damages caps or will be unlimited and governed by general tort law.
Author: Partners of Claims Resources and Solutions LLC publishes this article as a public service. It is provided for general information and is not intended to replace legal advice for specific cases.