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Medical Malpractice Basics

Medical malpractice, often referred to as “med mal,” occurs when a patient is injured by a medical professional. To succeed in a medical malpractice claim, the injured patient (or plaintiff in a lawsuit) must prove that the injury occurred because the medical professional’s treatment of the plaintiff fell below an acceptable “standard” or “duty” of care.

Medical professionals are not just doctors, they also include nurses, midwives, physician assistants and dentists. In North Carolina, medical professionals are licensed, registered or certified. Medical malpractice cases can also be brought against facilities like hospitals, doctor’s offices, clinics, nursing homes or hospice care facilities; places that are licensed to provide medical services. 

Malpractice only occurs only in very specific circumstances. If you are unhappy with your doctor’s care, it does not mean that malpractice occurred. For example, if you have high cholesterol and your doctor prescribes you a commonly used statin to lower your cholesterol but it does not work for you, there is no medical malpractice. Side effects of surgeries, which were explained to a patient ahead of time, and that were performed within the acceptable standard of care will not lead to a medical malpractice claim. 

Key Components of a Medical Malpractice Case

  1. Doctor-Patient Relationship. To have a medical malpractice claim, a doctor-patient relationship must exist. This sounds simple, you go to your doctor’s office and receive treatment. Or you go to the emergency room and an emergency room doctor treats you. These are both examples of when a doctor-patient relationship is clearly established. It’s not as simple when a doctor is only offering advice. For example, assume you go to your primary care doctor complaining of lower back pain and your doctor calls a spinal surgeon for a consultation. The spinal surgeon has never seen you but your doctor has explained your medical background and symptoms. If that spinal surgeon offers advice, has a doctor-patient relationship been established? Maybe. It is important that you consult with a Charlotte, North Carolina medical malpractice lawyer to ensure that you know if a doctor-patient relationship exists.
  1. Standard of Care. Medical professionals owe their patients a standard, or duty, of care. They are expected to be aware of, and follow “the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities under the same or similar circumstances . . .”  N.C. Gen. Stat. §90-21.12 (a)

It is important to understand that while the standard of care is a threshold level of care, it  can, and will, vary in different areas of the county and based on the type of doctor. For example, a doctor in a poor, rural area will have different experience, skills and training then an oncologist in Charlotte, North Carolina. 

  1. Breach of the Standard of Care and Negligence. A medical professional who fails to act in the way that a similarly situated provider (someone who has a similar education, training and skills) would and therefore provides poor care that results in harm, will likely be found to have breached the standard of care. 

Being unhappy with a medical professional’s treatment will not lead to a successful medical malpractice case. Rather, the medical professional must have acted recklessly, and in a way that harmed the patient. 

Medical malpractice cases are extremely complicated and fact specific. In Charlotte, North Carolina it is necessary to have a medical expert. The medical expert will opine on the appropriate standard of care, analyze the facts of the case and opine on whether or not he/she believes that the standard of care was met. 

  1. Damages. Just because a medical professional breached the standard of care, that does not mean that there are compensable damages. Medical malpractice plaintiffs must show that there was actual harm. Not all medical conditions are treatable. In the case of someone diagnosed with terminal cancer, a doctor’s unsuccessful efforts to slow down the speed at which the cancer progresses is not medical malpractice; there is no actual harm. Similarly, if a nurse is changing a patient and the patient falls but does not suffer any injuries besides a few black and blues, there is no actual harm and no compensable injury. On the other hand, if during the changing the patient fell and suffered an injury that caused paralysis then there could be a compensable injury and medical malpractice.  In Charlotte, North Carolina medical malpractice plaintiffs can recover damages for:
    • Physical pain
    • Mental anguish
    • Medical bills - this is all inclusive ranging from hospital bills to medications to medical equipment
    • Rehabilitation - either private or at a facility
    • In-home care
    • Lost wages if the plaintiff has to miss time from work
  1. Timing. In Charlotte, North Carolina an injured patient must file suit against a medical professional, or facility, within 3 years of the negligent act, or within 1 year of discovering the negligent act, whichever comes first. For example, if a patient had surgery in March of 2021 and could prove that he/she was paralyzed during that surgery because of his/her surgeon’s negligence, the patient would have until March of 2024 to file a medical malpractice claim. If however, that patient was not paralyzed but suffered other issues and it was discovered in August of 2024 that the cause of those issues was a sponge or an instrument left inside the patient during the March 2021 surgery, then the patient would still be able to bring a medical malpractice claim; they would have until August of 2025 to do so. These are just examples, the limitation on the time to file a claim is a complex issue that requires examination by medical malpractice lawyer who knows all the facts. 

Should You Bring a Medical Malpractice Claim?

Medical malpractice is an extremely complicated and confusing area of the law. As stated above, it is very fact specific and will require a  medical expert. A Charlotte, North Carolina attorney can examine your case and advise you as to whether he/she believes you have a case and then guide you through the steps necessary to file a claim. 

Contact our Charlotte, North Carolina Lawyers

If you think you have a medical malpractice case, the Charlotte, NC based lawyers at Rosensteel Fleishman, PLLC are experienced medical malpractice attorneys who can help you understand your rights and whether or not you should proceed with a malpractice claim. Please contact our office at 704-714-1450. There is no fee for an initial consultation. 

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