When any nurse, doctor, or other medical professional meets with a medical malpractice attorney to discuss a case, it's important to understand the terms that will define the conversation. Here are four concepts you'll want to understand before you discuss a medical malpractice defense with a lawyer.
Fundamentally, a medical malpractice lawyer is a civil litigation attorney. That means they address matters covered by civil law. In this instance, the civil letter is either an insurance claim or an injury lawsuit pertaining to alleged harm that occurred. The claimed harm likely arose from a medical decision or procedure, and the claimant is demanding monetary compensation to make up for what they allege happed to them.
Standard of Proof
The standard of proof is the burden that the plaintiff's side has to meet in a malpractice lawsuit. This is where the fact that a case is a form of civil litigation becomes important. For someone to be found liable by an insurer, a judge, or a jury, the claimant's side must show that their version of events is more likely than not to be the right one.
Duty of Care
A big item that the plaintiff must prove is that the defendant had a duty of care. This means that the alleged victim and the medical professional had entered into a relationship where the defendant had a duty to provide care as competently and safely as the circumstances permitted.
The simplest version of this duty is between a patient and a general practitioner. When someone goes to a GP's office, one of the doctor's assistants will have the patient fill out a bunch of paperwork. The paperwork attests to the fact that a doctor-patient relationship was established.
Similarly, a duty of care is established in emergent situations. If someone is the on-call surgeon in the ER when an unconscious patient comes in, a duty of care is established for the time needed to address the emergency.
Standard of Care
Oftentimes, a medical malpractice defense is built on the idea that the defendant provided appropriate care. For example, a psychologist might prescribe a drug to address a patient's needs. The question of the standard of care would center on whether a similarly situated psychologist would object to the prescription.
Note this doesn't mean the hypothetical psychologist would prescribe the drug. Instead, the question is whether they'd consider it unacceptable for someone else to prescribe it. If a decision meets the standard of care for a professional's branch of medicine, there's a good chance it wasn't malpractice. For more information, contact a medical malpractice attorney.