The Differences Between Medical Malpractice and Personal Injury Cases

Most personal injury cases cover accidents and negligence that occur in everyday life. Common personal injury cases include things like:

• Dog bites
• Slip and fall accidents
• Auto accidents

To establish the ability to receive compensation for damages, the legal requirements are the same, but the complexity of the situation is much greater in a medical malpractice case. There may be medical experts with conflicting opinions, and the direct cause of the injuries may be difficult to establish.

In the case of a dog bite, for example, the cause of the personal injury is clear and the dog owner’s duty to prevent the incident is fairly obvious. A slip-and-fall or vehicle accident may be more complex, but a car accident lawyer has the knowledge needed to establish the key legal points for these types of personal injuries.

Establishing medical malpractice is more complex, requiring proving negligence or other careless mistakes which cause a patient unnecessary harm. Medical procedures involve some level of risk, which might have been acknowledged and accepted before treatment, but this does not protect the hospital or doctor from lawsuits for inappropriate or reckless actions.

Some situations which are not likely to result in a medical malpractice personal injury claim include:

• A patient’s condition worsens after medical care. Not every medical treatment is successful and, if a patient’s condition gets worse following medical care, this does not necessarily indicate malpractice on the part of the doctor. Even if a different treatment might have worked, provided that the medical professionals involved showed reasonable care and skill while treating the patient, they have fulfilled their legal duty.
• A patient’s condition is terminal or cannot be cured. The law recognizes that doctors have a duty to provide treatment even in cases where the condition cannot be cured. As a result, medical professionals cannot be held liable for paralysis, suffering, or death caused by a terminal illness as long as they provide an acceptable standard of care to the patient during treatment.

Filing a successful medical malpractice claim will depend on the same four key factors that are necessary to all personal injury cases, but with a medical focus and perspective. We will discuss how each of these four legal requirements pertains to a medical malpractice case:

• Duty of care
• Breach of duty
• Causation of harm
• Damages, losses, or injuries sustained that may be compensated

All four of these elements must be present in order for a lawsuit to be successful. As the victim, it is your responsibility to provide evidence that supports your claim. A medically focused personal injury attorney may be essential in proving these basic elements in a complex case involving medical technology and life-changing decisions.

Medical professionals and nursing home staff have a duty to provide “competent” medical care to their patients. This means they are held to the standard of care provided by other competent professionals in their field.

For this duty of care to exist, the following must be true:

• The patient was under the care of the professional, was admitted to a facility, or was presented to a medical facility in need of emergency care.

This duty of care is easy to prove when there is an existing doctor/patient relationship and medical records to support it. A doctor, nurse, or EMT who encounters disease in a social situation is not held to the same duty of care as they are when working. Medical facilities must have reasonable professional standards in place to keep patients and residents safe.

The details behind whether there was duty of care are more complicated in cases of medical emergencies. When it comes to arguing a medical malpractice case, expert witnesses might be needed to establish whether there was duty in a specific situation.

Having established that there was duty of care, for malpractice to occur there must be a breach (or failure) in performing that duty. A personal injury attorney must prove that the medical professional failed to provide competent care. This standard is quite different from that used in general personal injury cases.

There are a number of ways that a health care provider might deliver sub-standard care:

Medical Negligence

This specific category of negligence is defined as failing to provide the same level of care as other local doctors or medical personnel of similar education and skill level.

Some possible examples include:

• Failing to diagnose a harmful condition that a competent practitioner should recognize, leading to delayed or improper treatment.
• Failing to advise the patient of serious treatment risks, which then cause the patient injury.
• Making unacceptable errors during medical treatments, such as surgical mistakes or anesthesia dosage errors, which cause injury.

Reckless Actions

In the case of a personal injury case regarding an accident, actions are judged against a standard of what a reasonable person would do. In a medical case, it may be considered reckless to take actions against accepted medical practices and guidelines.

While rare, reckless behavior does happen in the medical profession. Some actions that might lead to malpractice claims include:

• Administering dangerous combinations of medications
• Using medications in ways for which they have not been approved
• Performing surgery or other invasive medical procedure while under the influence of drugs or alcohol
• Making other diagnostic, medication, or treatment errors due to distraction, overwork, mental health, or substance abuse issues

Improper Care and Neglect

Improper care covers a wide range of medical malpractice, ranging from gross surgical errors such as amputating the wrong limb to not performing CPR with a reasonable skill level. Another example is a hospital that does not maintain a sterile environment or instruments for surgery or a professionally clean living environment for patients.

Neglect goes beyond failing to provide reasonable care, extending into knowingly delivering sub-standard care or allowing patients to suffer unnecessarily. Eldercare facilities and nursing homes which fail to provide basic comforts, medication, and necessities to patients might be liable for medical neglect.

Having failed in the duty to provide competent care, the next factor a personal injury lawyer must establish is that this failure caused the patient harm. Linking the breach of duty directly the cause of the loss or injury is part of all personal injury claims; however, in a medical setting, it can be more difficult to establish a direct link. This is partly due to the complicating factors of an existing illness or disease.

Doctors, hospitals, and their insurance lawyers will strive to defend this point, often arguing that the outcome would have been the same even if the negligence had not happened. Medical experts might have differing opinions on whether an earlier diagnosis would have led to a different result, and the patient’s attorney must be prepared to engage expert witnesses with a high level of credibility to counter these tactics.

With a clear link between the doctor’s actions and the resulting injury, the medical malpractice claim now depends on a full and accurate accounting of the losses or damages sustained as a result.

There is little chance to go back later and receive more compensation, so bringing to the table all of these items as part of your claim is important:

• Medical bills and costs of future treatments needed as a result of the injury
• Lost wages and future loss of earning potential
• Pain, suffering, and emotional distress caused by the experience
• Loss of a limb, eye, or hearing due to the injury
• Wrongful death of a loved one due to medical malpractice

During times of illness and hospitalization, it can be easy to simply go along with medical personnel. However, if you believe that a medical professional did not provide competent care and injuries have resulted, working with a personal injury attorney who understands the complexity of malpractice cases can be invaluable.

They can help you:

• Work with the medical professional or facility involved to gather evidence for a claim.
• Contact relevant medical licensing authorities to report the incident and determine if there have been past complaints.
• Help you file a lawsuit before the relevant statute of limitations runs out for this type of claim.
• Obtain expert medical opinions to support your case, providing a “certificate of merit” in those states that require
• Assist with obtaining an out of court settlement with a malpractice insurance company and help you decide if this is in your best interest.

Here in Houston, the team that has your back in everything from medical malpractice to maritime law is Schechter, Shaffer & Harris, L.L.P. With a long and winning record in our Texas regional court systems, there is no better ally to have on your side when you need a personal injury lawyer.

Our goal is to help you obtain the fair compensation you deserve for your injuries. We understand the complexities of medical cases and how to negotiate with their legal representatives. When the worst happens during medical or nursing care, contact us right away and let us defend your rights to safe healthcare.