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How Do You Know If You Have a Potential Medical Malpractice Lawsuit?

If you’ve suffered as a result of recent medical care that you received, you may have the option to bring your case to court.  Medical malpractice happens much more frequently than you may think.  In fact, preventable medical errors are the third leading cause of death in the United States, and those are just the ones we know about.

Medical malpractice occurs when you suffer as a result of medical care that is provided or withheld in a manner that is negligent or reckless.  Proving medical malpractice requires that you offer evidence suggesting that the health care provider or providers breached their standard of care while treating you.  You also must prove that the provider’s violation of duty caused you injury or caused an existing injury to substantially worsen.  The easy way to identify medical malpractice is by using the “four Ds”: duty, dereliction, direct cause, and damages.  Each of the four D’s is a necessary element to prove to a court in order to properly bring a lawsuit for medical malpractice.

The experienced Baltimore medical malpractice attorneys at Bennett & Heyman have seen it all.  From misdiagnosis to reckless prescribing techniques and everything in between, we’ve always demonstrated to our clients that we can get them what they deserve.  To speak with us about your case, call our offices at (410) 305-9287.

Duty in a Medical Malpractice Lawsuit

Duty refers to the responsibility that the health care provider assumes whenever they treat a patient.  Objectively, these duties can be expressed by comparing the actions of the health care provider to what would reasonably be expected of other similar practitioners in the same field.  But there are also explicitly understood duties by which health care professionals must abide in the course of their practice.

For instance, health care providers have a duty to fully communicate all pertinent information to their patients.  Doctors must provide patients with their diagnosis within a reasonable period of time and must disclose any risks associated with prescriptions or medical procedures they recommend.

Doctors also have a duty to warn patients about any reasonably foreseeable dangerous circumstances that could be caused as a result of the care.  For instance, if a doctor prescribes a medication that may cause extreme drowsiness, the doctor has a duty to warn the patient about the side effects and how they might affect the patient.  If the patient were not warned that the side effects of a prescription could affect their ability to operate a vehicle, and drowsiness caused the patient to fall asleep at the wheel causing an accident, the doctor would have violated their duty.

Duty of Informed Consent

Doctors also have a duty to ask for and receive informed consent before engaging in a given course of treatment.  Consent must be granted verbally or in writing by the patient, and can only be given if the doctor has clearly and explicitly provided the patient with all the relevant information.  This is important because medicine is complicated, and no patient should be expected to easily understand or infer any information about a given diagnosis or treatment.  If you received treatment where you were not informed of the side effects or that you don’t feel you agreed to receive, you may have a valid medical malpractice case.

Duty to Third Parties in a Medical Malpractice Lawsuit

Even third parties who may have been injured as a result of the accident may have a case of medical malpractice against the health care provider.  If you were injured in an accident that you believe may have been caused by the side effects of a drug, call our medical malpractice attorneys for a consultation about your options.

Dereliction of Duty in Medical Malpractice Case

The dereliction element is met when the health care provider fails to act with the appropriate standard of care.  The standard of care is a legal term that refers to the level of treatment and care that a patient might otherwise get from another similarly qualified medical professional under the same circumstances.  Proving the standard of care for a particular medical practice in court often requires the introduction of expert testimony.  Experts can explain common practices and procedures to the court so that the deviation from the standard of care can be readily identified.

This element is critical in medical negligence cases just as it is in regular negligence cases.  If a waiter at a restaurant spills grease on the floor where customers frequently walk, and the restaurant fails to clean it up or put up a sign indicating the slippery condition, they have failed to abide by the appropriate standard of care to their customers.  Proving negligence in the medical care field isn’t terribly different, except that health care providers are held to an even higher standard.  For more information about medical negligence, speak with one of our exceptional attorneys.

Common examples of deviation from the standard of care in medical malpractice include the following:

  • Misreading or misrepresenting the results of a laboratory test
  • Improper prescribing practices (too much or wrong type)
  • Failing to properly diagnose a patient
  • Improperly recommending invasive surgery
  • Poor surgical procedure or technique
  • Other preventable surgical errors

If you believe that you have endured any of the above failures by a medical professional, you may have a legitimate case for medical malpractice.

Direct Cause of the Injuries

Once you have shown that the health care provider owed a duty which they then breached, you must also demonstrate that the breach of the duty was a direct cause of the injury or injuries that you suffered.  This must be accomplished in two ways: (1) proving “cause in fact” and (2) proving “proximate cause.”

Cause in Fact

One way to demonstrate direct cause is by showing that, “but for” the health care provider’s negligent or reckless action or failure to act, the injury would not have occurred.  An example that illustrates cause in fact might be where a surgeon failed to remove a surgical tool from the patient’s body at the end of surgery and the patient developed a condition because of it.

Proximate Cause

“Proximate cause” is a legal tool that cuts off cause in fact.  Many things have to happen to get the patient and doctor in the same room and for the doctor to make the mistakes they made.  However, not all of them are closely linked to causing the injuries.  For something to be the direct, legal cause of the injuries, it must be both a cause in fact and a proximate cause.

An “injury” for these purposes does not necessarily have to be a new injury created by the malpractice.  If a patient’s condition was misdiagnosed and became worse as a result of an erroneous course of treatment or a failure to properly identify or treat the condition, a court could consider the exacerbation of the condition an injury for the purposes of finding direct cause.

Similarly to dereliction, the process of proving direct cause of injuries in a court can often require expert witness testimony.  It also requires the introduction of evidence about the procedure in question, the nature of the injuries sustained as a result, and several other factors that are important in the determination.  Having our competent medical malpractice attorneys on your side while your case is being prepared can prove invaluable in achieving your desired result.


In a medical malpractice case, the patient who suffered the injury must be able to recover for the injuries, which requires a showing of the damage that the injury has caused.  Courts allows patients who were the victims of medical malpractice to recover under a number of categories.  The following are some examples of theories under which a medical malpractice plaintiff could claim damages:

  • Additional medical treatment
  • Physical therapy
  • Lost wages or inability to obtain employment
  • Hospital bills
  • Attorneys’ fees
  • Resulting chronic pain
  • Psychological and emotional trauma
  • Pain and suffering

Estimating the correct amount of damages to include in your suit can be difficult without the assistance of a lawyer.  The seasoned medical malpractice attorneys at Bennett & Heyman can collect all of the appropriate information and discuss an appropriate estimation of the damages you might recover.  This information is critical for filing your lawsuit as well as considering any potential settlement options.

Medical Malpractice Due to Recklessness

While rare, a showing of recklessness in medical care can suffice for the requirements of the negligence element of medical malpractice.  Recklessness in medical care occurs when a care provider intentionally acts with reckless disregard for a foreseeable negative result.  An example of medical recklessness would be a surgeon operating while under the influence of drugs or alcohol.

Medical recklessness is different than medical negligence in that the court may award more substantial punitive damages.  It is also a lighter burden for the plaintiff, because less evidence is required to establish the standard of care.  In other words, you don’t typically need an expert to explain to a court that getting drunk before a surgery is reckless.

However, not every situation is so cut and dry.  Expert witnesses may not be necessary to prove recklessness in every situation, but they will likely be necessary for testimony on the severity and long-term impact of your injuries sustained due to medical negligence.

Determining what is necessary to prove and how to do it is the job of counsel.  Our attorneys can advise you on whether your injury was due to medical recklessness, and explain the burden that your case will have to meet in order for you to get compensated for your injuries.

How Long Do You Have to Figure Out if You Have a Medical Malpractice Case?

As with most cases, you only have a certain amount of time to file your case.  This time limit, known as the statute of limitations, is imposed by state statute and varies depending on the type of case and the court that it is brought before.  Medical malpractice cases are more complicated, however, as the injury is rarely discovered immediately after the negligence occurs.

The length of the statute of limitations depends on the state in which the medical malpractice occurs.  For example, in Maryland, the victim of medical malpractice may file their lawsuit at any point during the five years after the date of the injury or the three years after discovering the injury, whichever expires first.

For instance, if you were negligently misdiagnosed but didn’t realize for four years, you would still be within the applicable five-year statute of limitations and could validly file your suit at any point over the next year.  Conversely, if immediately after waking from surgery you discovered that the surgeon performed the wrong surgery, but you waited to file your lawsuit for four years, you would no longer have a valid case since more than three years had passed since you discovered your condition.

If you hope to recover for your injuries caused by medical malpractice, you can’t afford to wait.  Consult an attorney at the earliest chance you have so that your case doesn’t lapse.

Call Us Today About Your Potential Medical Malpractice Lawsuit

Our dedicated attorneys will work tirelessly to get you the decision or settlement that you deserve as a result of your injuries at the hands of negligent or reckless health care professionals.  To speak to Bennett & Heyman about your case, call (410) 305-9287 to schedule your consultation today.

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Why do people choose us? Results

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