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Is It Malpractice or Is It Something Much Easier to Win?

Posted by: Chad Hemmat | Wednesday, March 10, 2010 | 0 Comments | Back to Personal Injury Blog

When doctors make a mistake and a patient dies, that is a medical malpractice case. As clear as that case might seem, by the time the case rolls into trial, the case, the applicable law, and the medicine is anything but clear.

DIFFICULTIES OF A MED MAL CASE

In fact, percentage-wise, nearly every clear cut medical malpractice case brought in Colorado that goes to trial results in the patient losing and the doctor winning. To prove a case against a doctor you have to prove with a similarly qualified physician that the conduct of the treating doctor was a breach in the standard of care. Not that there was a bad result, or bad injuries.

Doctors get the benefit of the doubt for simply bad results. Basically, what has to be proven is that the doctor drastically deviated from the accepted ways doctors do things, and that it was that deviation from normal standard conduct that was the actual cause of the patient's injury or death.

Attorneys defending the physician will likely make numerous arguments, including: 1) that the conduct was not a deviation from the standard of care, or 2) that the injury was not related to the doctor's conduct, or 3) that the injury/death was a coincidence. It is very hard to prove a case, even in the clearest cut case, against a physician in Colorado.

SIMILAR CASES WITH DIFFERENT A DIFFERENT STANDARD

In complete contrast to malpractice actions, claims arising out of nursing home neglect, hospital negligence or negligence caused by an in-patient rehabilitation facility is not considered a medical malpractice case. There is no required "standard of care expert" and rarely do words like "deviation from acceptable standards" get utilized in these cases.

In these cases a patient would simply have to prove that injury or death was caused due to a lack of reasonable care. In comparison to a claim against a physician, it is a relative piece of cake.

The type of injuries which are often a relatively easy claim to prove and can be quite successfully pursued in Colorado can include where patients develop pressure ulcers (bed sores) or where a patients falls while unattended even after being identified as a fall risk. Other, claims that would be relatively easy to win would include basically any neglectful care of patients in a nursing home.

Often victims who have a viable claim like this are apprehensive of bringing it because they may erroneously believe that the same impossibly high standard which applies to Medical Malpractice claims also applies to their claim. In fact, nothing could be further from the truth.

Nursing homes, as an example do not carry that level of jury appeal that a silver haired physician defendant does. In fact, by and large the jury sympathies are actually where they should be in these trials, with the vulnerable and injured patient. Pressure ulcers, falls and patient kidney failure due dehydration are exceptionally good cases and are reasonably winnable.

If you are not sure which standard will apply to your case, call us today at Anderson, Hemmat & McQuinn and we will help you navigate through this legal maze.


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