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Putting A Band-aid On Medical Malpractice Law


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Medical malpractice law steps in when a doctor or other medical practitioner has been accused of acting negligently during treatment of a medical condition. Legitimate medical malpractice can happen because of something the doctor did, or because he or she didn't take appropriate action.

Medical malpractice may be due to the unreasonable delay in treatment of a diagnosed medical condition; failure to provide appropriate treatment for a specific medical condition; or failure to properly diagnose or the misdiagnosis of a medical condition. The laws that govern medical malpractice often differ from state to state. This means that the stipulations regarding lawsuits will also differ depending on individual state laws. However, the broad definition of medical malpractice is universal meaning that damages can only be recovered if the patient incurs injury or death. If the doctor makes a mistake but the patient sustains no harm, there are no grounds for a lawsuit and no damages can be recovered.

One exception to this rule regarding medical malpractice law is the segment of informed consent. Under this section of the medical malpractice laws a patient must provide informed consent in order to have a medical procedure performed. Informed consent is a legally binding document that indicates the patient has been properly and thoroughly informed of all of the dangers as well as benefits of the procedure.

Once thoroughly informed, the patient indicates that they have been informed of these risks and consent to the procedure with a willingness to accept those risks. When informed consent is not properly acquired, the doctor may stand to have a medical malpractice claim filed against him or her even if the patient did not sustain any harm as a result of the procedure.

In addition, the changing environment of medical care makes malpractice law ever more important. Medicine has become a business of profit, and to this end, physicians are under greater and greater pressure to make fast diagnoses and to be as efficient as possible. This opens the door for physician error.

This characteristic of the new environment of the medical industry is that doctors are spending less and less time with their patients which equates to less time that the doctor has to obtain the patient's medical history that is thorough enough to provide the doctor with vital clues that may aid him or her in diagnosing a condition.

This is problematic for both the patient and doctor because the likelihood of misdiagnosis or missing key symptoms that could lead to a diagnosis is very high. Medical malpractice law is even more relevant in such cases because it plays a major role in improving patient care as well as protecting doctors from frivolous or erroneous lawsuits.

Some doctors are striking back against patients who have filed unfounded or frivolous lawsuits against them by countersuing. Many Medical malpractice lawsuits are settled out of court because insurance companies urge plaintiffs and defendants to go that route due to decreased expenses.

This activity, however, makes it difficult to track lawsuits that are files because they are not recorded in a court of law which is public domain. It is estimated, however, that approximately 25% to as many as 50% of lawsuits filed but are later deemed frivolous are still paid. Removing the legal element of a judge undermines the checks and balances system.

Doctors must carry medical malpractice insurance so that they may be protected in the event that they are sued, regardless of whether the suit is found to have merit or not. Even the most vigilant of doctors may be sued; no one is exempt. Doctors who are sued must contact their insurance company immediately so that they will have access to the many resources available to counter the suit if it is unfounded.

In many cases, medical malpractice law, as it currently stands, has been regarded as ineffective by both patients and physicians. Patients who are legitimately injured by malpractice may slip through the cracks and never see vindication while physicians who are innocent of the malpractice claims may be victimized as well.

A common belief is that attorneys on both sides will profit, regardless of the outcome. Improvements need to start there. Proponents of medical malpractice law feel that the system needs to be "fixed" so that efficiency is increased and both the patient's and physician's rights are considered. Perhaps ending the system where attorneys go head to head, vying for the win would result in a medical malpractice system that is more efficient and fair to all parties involved.
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