Tort & Medical Malpractice
Medical malpractice occurs when a medical provider causes injury to a patient because of the failure to meet the standard of care required by law. Medical malpractice is a tort, which is a civil wrong. An injured party can use the injury as the basis for bringing a lawsuit against the person responsible. A plaintiff can recover monetary compensation as the civil remedy in tort law.
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Negligence
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Although a patient assumes a risk when receiving medical treatment, a patient does not assume the risk of injury when it is the result of the medical provider's negligence. Negligence occurs when a person fails to exercise the standard of care that a reasonable and prudent person would have in a similar circumstance. Because a health-care provider has special skills, the provider must possess and exercise the knowledge and skill as a member of the profession in the same or similar community would.
Res Ipsa Loquitur
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Under the doctrine of res ipsa loquitur, which means "the thing that speaks for itself," the plaintiff may establish liability by showing that there is a reasonable basis to reach the conclusion that the medical provider breached a duty of care. To prevail, the plaintiff must establish that the injury is the kind that would not ordinarily occur in the absence of negligence, that the object that caused the injury was in the sole control of the medical provider and that the plaintiff's actions did not contribute to the injury.
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Informed Consent
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Before undergoing medical treatment, a patient must give informed consent. Informed consent means the patient received information about the risks, benefits and alternatives to the medical procedure. Informed consent is inapplicable when a patient is unconscious in an emergency. A patient may sue a medical provider for negligence or battery if the provider fails to give informed consent before performing a medical procedure.
Breach of Contract
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Breach of contract is not a common medical malpractice theory since medical providers do not typically make promises about a particular outcome of a medical procedure. However, a plaintiff may sue for breach of contract if the medical provider failed to perform the duties specified in a contract. To prevail, most courts will require the plaintiff to show written proof of the warranty.
Vicarious Liability
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An injured patient may sue a hospital for the negligent actions of its medical provider under the doctrine of vicarious liability. Vicarious liability refers to the liability of a third party for the actions of another party. The basis of liability comes from the relationship between the wrongdoer and the third party. A hospital may be liable for the actions of a medical provider it employs when the tort occurs within the scope of employment.
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