Medical Malpractice FAQ

How Can I Tell If a Person Died from Medical Malpractice?

Are you concerned that a loved one may have died due to medical malpractice? If so, the following sections answer many of the questions that you may have.

The Legal Definition of Medical Malpractice

Legally, medical malpractice occurs when a healthcare provider (such as a physician) fails to adhere to the standard and level of care that is expected by similar healthcare providers, and injury or death results.

In assessing whether the standard or level of care was met, physicians will be judged against other physicians in their same practice area. Thus a cardiologist will be held to the standards of care of other cardiologists; oncologists will be held to the standard of care of other oncologists.

  • Q:How can medical malpractice be committed?

    A:Medical malpractice can be a result of: 

    -Failing to correctly diagnose a condition when the condition is first presented  
    -Misdiagnosing lab reports, x-rays, or other testing  
    -Failing to give prudent and proper care when the same is medically required  
    -Prescribing medicine that should not be prescribed – either because of a patient’s medical condition or other medicine that a patient is currently taking  
    -Giving a patient the wrong (non-prescribed) medication, or not giving the patient the correct dosage  
    -Medical mistakes, such as those occurring in surgery  
    -Operating on a patient without the patient’s informed consent. While a patient may have consented to certain procedures, this does not mean that a surgeon can do additional procedures to the patient during surgery. 

    These are only a short list of general categories of ways in which medical malpractice occurred.

  • Q:How is medical malpractice proven?

    A:Medical malpractice is proven through a number of ways, including: Retaining an expert (often a physician) to carefully review a patient’s chart. In cases involving emergency procedures (including those resulting in birth defects), it is important to review patient charts, the procedures taken, and the patient’s vital signs on a minute-by-minute basis. In court, a medical expert will be necessary to testify as to exactly how a health care provider committed medical malpractice and the harm that directly resulted from such malpractice. Deposing the health care providers in question Interviewing medical staff Deposing experts It is important to recognize that in some situations, there may be more than one “correct” option that a competent medical provider may have taken.

  • Q:Does a person have to die right away in medical malpractice cases?

    A:No. The event giving rise to medical malpractice does not necessarily need to lead to immediate injury or death. In “failure to misdiagnose” cases, often the harm does not result for months or more after the wrongful action took place. For example, if a physician or radiologist failed to diagnose the signs of breast cancer in a woman during a checkup, and the cancer was not diagnosed until months later, the “harm” that occurred might be more extensive (and painful) treatment, the increased risk that the women would die from cancer since it was not properly detected early, or even a wrongful death (if the woman in fact dies).

  • Q:How can I determine the actual harm from medical malpractice?

    A:In some cases, like the one in the above example, the actual harm may be difficult to determine. In that example, what would the prognosis have been if the woman’s breast cancer was properly detected in the first checkup? Would she have had a higher risk of surviving cancer? Or would early detection during the original check-up not have made a difference? A death occurring during (or shortly following) surgery will also raise many questions. Why, exactly, did the person die? Was the death the result of a high surgical risk that was accepted by the patient (and which a good surgeon could not have prevented), or did the surgeon make a mistake? The answers to these questions are often far from clear. A physician (or other qualified medical expert) will be essential in these types of cases to determine whether the woman’s prognosis worsened from the failure to make the correct diagnosis in the first checkup.

  • Q:Does the fact that a person died indicate medical malpractice?

    A:No. In emergency room situations, a critically injured patient may have died even if a physician had all of the correct actions, and not been negligent. With some cases, the ultimate harm caused by medical malpractice can be difficult to determine. This is why getting an expert opinion is both critical and necessary. An expert will be needed to provide an opinion in court not only as to whether medical malpractice occurred, but also the exact harm suffered as the result of the medical malpractice.

  • Q:Would a better physician have produced a better outcome?

    A:In determining whether medical malpractice occurred, the health care provider will be measured against similar, competent health care providers. As a result, if a patient dies during brain surgery, the issue will not be whether a better surgeon might have prevented the death, but whether the surgeon involved acted in a manner of similar competent surgeons. In order to show medical malpractice, in other words, it must be shown that the surgeon did not, in fact, meet this standard.

  • Q:I think medical malpractice may have occurred – should I sue?

    A:Medical malpractice cases are not taken lightly – either by our firm or by the medical providers who may be defendants. Before we will initiate litigation, we will invest significant time and resources – including retaining one or more experts – to meticulously review a case. Only in those cases in which we believe strongly that we will be able to prove in court that malpractice occurred will we recommend that litigation be filed. We do not typically charge clients for either our time or the expenses that may be incurred in evaluating a case, including the costs to retain experts, if a case is not accepted. If your case is accepted, we provide representation on a contingency fee basis, and the costs of experts is paid from the settlement or jury award (our fees and how such costs are handled are set forth in our retention agreement). It is important to understand that we will not file a case as an attempt to get a quick payment. Medical providers and their insurance companies will contest cases vigorously; often cases can take two years or more of intense litigation. Quick settlements for fair consideration in medical malpractice cases almost never occur. As a result, we – and our clients – must be willing to take and advance a case for an extended period of time.

  • Q:What family members may recover in medical malpractice cases involving the death of a loved one?

    A:The State of Washington has adopted strict classifications on who may recover in the wrongful death. In general, the spouse and children of the deceased may bring a lawsuit; parents and siblings who are financially dependent upon the deceased loved one may also bring a lawsuit in certain cases. To learn more about who may sue, please see Who is Entitled to Recover Damages in a Wrongful Death Case in Washington?

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