Medical Negligence: How to Claim?

With growing unrest in the healthcare industry today, more people are paying attention to the quality of the healthcare that they receive. In the worst cases, some patients become victims of medical negligence.

Key takeaways:
  • arrow-right
    Medical negligence is when a patient receives an act of improper care or the omission of proper care.
  • arrow-right
    The first step in claiming medical negligence is to speak to an attorney to ensure pursuing a claim is worth your time and energy.
  • arrow-right
    Being an advocate for yourself and an educated patient may help prevent you from experiencing negligence and malpractice.

Patients have the right to receive proper care. These rights are federally protected, and there’s a legal process to uphold these standards when claiming medical negligence.

What needs to be proven?

Medical negligence is an umbrella term that covers any act of improper care or the omission of proper care by a medical provider to a patient. Medical malpractice is when negligence leads to an injury.

The medical provider had a duty to care for a patient. This means that the patient was under the direct care of the medical provider. They had to have assumed responsibility for the patient in an operating room, hospital, or another healthcare setting.

The medical provider violated medical best practices. There is a standard of care in medicine that represents the expected quality and timeliness of a patient’s care. The patient must prove that the medical provider did not abide by these standards.

An injury occurred.

The patient’s injury was caused by the medical provider’s best practice violation. Some injuries are caused by accidents due to the inherent risk of medical care, especially with high-risk surgeries or medications. The injury would have to be related to a lack of proper care to prove medical negligence.

Situations leading to medical negligence

It’s common to see stories in the news of medication errors leading to death or surgeries performed on the incorrect body part. However, the most common type of medical malpractice lawsuits includes failure to diagnose, misdiagnosis, or failure to treat.

A misdiagnosis or failure to diagnose has to carry proof that this caused an injury to the patient.

For example, if a patient reports to the emergency room and has a medical exam that confirms stroke-like symptoms, the standard of care would be to arrange for a CT scan of the brain to verify the possible stroke.

A negligent physician may discharge the patient, blaming their symptoms on stress. If the patient later suffered an injury, like paralysis, then this would be medical malpractice.

Who experts say is at risk

Many experts watch for neglect and ensure it is eradicated from hospitals and clinic settings. Many experts state that the following three items tend to be the most apparent when it comes to risk:

  • Elderly patients
  • Patients in an understaffed medical unit
  • Individuals with life-threatening conditions

Elderly patients

Adam Rosenblum, a managing attorney at Rosenblum Law, believes that “elderly patients with no family to keep a watchful eye on and ask questions” are the most at risk.

Patients that are unable to advocate for themselves might not be able to communicate all the pain and symptoms they are experiencing. This can lead to misdiagnosis because the provider doesn’t have the complete medical picture. In extreme cases, the elderly are vulnerable to intentional neglect and abuse.

Patients in an understaffed medical unit

Chelsea G., RN, BSN, MLS, a nurse with experience in hospital compliance, believes that patients are the most at risk in any poorly staffed medical unit.

A 2014 study echoes this sentiment, concluding that “an increase in a nurse's workload by one patient increased the likelihood of an inpatient dying within 30 days of admission by 7%”.

This means that the more patients a nurse cares for, the more likely it is that patients will suffer avoidable harm. Nurses are sometimes assigned their patient load without consideration of many patients they can safely care for.

Individuals with life-threatening conditions

Armand Leone Jr, Esq, MD co-founder and leader of the medical malpractice practice at Britcher, Leone & Sergio, states that those with cancer, infection, heart, and lung disease are at risk for misdiagnosis. He also added that injuries from surgeries or miscommunications between medical providers account for other types of negligence.

How can you claim medical negligence?

The best place to start is to contact a local attorney. The attorney will likely advise you to get a second medical opinion, which will help build a negligence case. The second opinion will verify if the injury was due to a breach of the standard of care.

There are also regulatory boards that manage the standards of practice for licensed medical professionals. An attorney would advise you on how to report to a state medical board, a state board of nursing, etc.

How to protect yourself

The best way to combat medical negligence is to prevent it:

Establish with providers through referrals of people you trust.

Get a second opinion or switch providers if you don’t feel safe with your care.

Ask your nurse what their nurse-to-patient ratio is, and know what the appropriate ratio is for the unit you’re admitted to.

If you feel you are experiencing medical negligence in a hospital or acute setting:

Go up the chain of command. This means if the issue is not being resolved, you request to speak with the individual with the next highest level of authority until you’re satisfied with your care.

Document dates, times, and names as much as possible when you’re feeling unsafe. Have a family member do this for you if they’re able to accompany you.

After discharge, consult with an attorney as soon as possible.

If you feel you are experiencing medical negligence in a hospital or acute setting:

Go up the chain of command. This means if the issue is not being resolved, you request to speak with the individual with the next highest level of authority until you’re satisfied with your care.

Document dates, times, and names as much as possible when you’re feeling unsafe. Have a family member do this for you if they’re able to accompany you.

After discharge, consult with an attorney as soon as possible.

Is it worth claiming?

Lawsuits are not only financially straining but also emotionally taxing. Only you can decide if a medical negligence case is worth the time, money, and stress it could have on your life. If you suffered severely from medical negligence, a lawsuit might be the best way to recoup some damages and to receive the justice that you are entitled to.

An attorney will be able to advise you on the realistic timeline and financial commitment that your case would take so you can make an educated decision.

Most attorneys agree that a case takes between 3-6 years, with some exceptions for cases that are shorter or longer. Each state has a different legal timeframe in which you can claim negligence.

The bottom line

Whether or not you have experienced medical negligence, becoming an educated patient and consumer in our medical system will benefit you. Be an advocate for yourself and your loved ones. It might save you from medical negligence in the future.