When a person’s health has been impaired it doesn’t always mean that there is a case for malpractice or personal injury. Sometimes people just get hurt and it’s no ones fault. Other times there is clearly a party that is deserving of blame - and thus owe damages. Generally it can be difficult to determine who is at fault, or even if there is a “fault.” When we discuss personal injury or medical malpractice we are typically speaking of a person who was injured either in an accident or by care involving a health care provider, such as a hospital, doctor, physician assistant, advanced nurse practitioner, Nursing Home, or Rehabilitation Facility. Less frequently, there are also claims against Dentists, Podiatrists, Chiropractors and Veterinariums. Once a person they usually need to consult with an attorney to see if a legal case exists. This article is meant as a brief explanation and guide for the average person. It is intended to assist in understanding the process better.
In the medical field an “injury” is classified as any sort of harm to the body (the person). The legal definition of an injury however is a bit different and this can cause confusion. A “legal injury” is harm that was caused by the improper acts of another. This means that not only must someone actually be medically injured but that some other person did something wrong which directly caused the injury. For example a truck driver exceeding the speed limit, perhaps because of the need to make deliveries faster, who then hits you because he didn't have time to stop to avoid the collision. Here, we have a driver of a truck who has a duty to obey the speed laws, violates that duty, and causes an injury to you as a direct and proximate result of his negligence. This case would be classified as a Personal Injury lawsuit.
In the case of Health Care Malpractice, or specifically Medical Malpractice, a patient goes to their doctor for care. As an example let's say the patient complains of chest pain with shortness of breath. The doctor assumes it's indigestion and doesn't do anything to check for heart disease. After the doctor discharges them with a prescription for antacids, they end up dying from an acute cardiac event (heart attack) within a few days. Here, the doctor acted negligently and, as a direct result, a person died (the damages).
Now, let's look at the two cases in just a slightly different manner. Let's say that the injury caused in example No.1 above, where the truck driver hit a pedestrian, that the person illegally ran out into the street from in between two parked cars. Had the truck been going the posted speed limit, it still would not have been able to stop on time. In this case, the truck driver is not guilty of causing the injuries because there would be what the law calls a break in proximate cause. It cannot be said that but for the truck not going the posted speed limit that the victim was hit. They would have been hit either way. (This, by the way, is the analysis that will have to be used on the recent Uber self driving car case where a person was hit and killed, i.e. would this have happened even if a Human had been driving? If so, then the law cannot put the blame on the self driven car per se). An avoidable risk is just that no matter what.
Similarly, for the medical doctor example above, the law will ask whether the deceased would have suffered the heart attack even if the doctor had made the correct diagnosis. If a treatment exists for the condition, then the doctor must be guilty because but for their not referring the patient, they did not get the life saving treatment (lets say a Nitroglycerin pill). In this case, the law assumes that had the doctor made the correct diagnosis, they would have referred the patient for appropriate treatment, and the patient would not have died. This then would be professional negligence or medical malpractice. If no treatment existed for whatever heart condition they had, then there is no medical malpractice in this example because even if the condition is diagnosed it cannot be treated. This is again a break in legal causation.
This can get much more involved and a lawyer is recommended in assisting to make a decision in whether there is legal cause to pursue a case. This can be very difficult, even for an experienced medical malpractice lawyer because medical science is usually beyond a lawyers area of expertise. A good lawyer will retain an appropriate medical doctor to help sort out all of the issues in analyzing such cases. Most people end up simply going to a lawyer they know as a friend or who has assisted them in the past. This is usually a mistake because such lawyers are not ordinarily trained or experienced to analyze such complex cases. Even the best lawyers in medical malpractice are not doctors and should seek out help not only to determine if there is a case. Don't just sit back and accept it when a lawyer tells you there is no case. You need to know in detail the basis for such a conclusion. If your lawyer cannot do that, then you need to seek another opinion or call a medical consultant who can do this review for both you and your lawyer. Remember also that time is ticking. The law puts a time limit on when you can sue. Delaying too long forever blocks suit. This is called the Statute of Limitations and this is strictly enforced so don't test it. Besides, medical malpractice cases are not like fine wine, they don't get better with age.