criminal medical malpractice

Strictly speaking, a medical malpractice claim is one type of personal injury claim. Medical malpractice claims, however, differ in significant ways from ordinary personal injury claims. A lawsuit against a drunk driver who injured you in a car accident, for example, is different from a lawsuit against a doctor who prescribed the wrong medication or misdiagnosed a serious illness.

How Ordinary Personal Injury Claims Work

The classic example of an ordinary personal injury claim is a car accident claim, because millions of car accidents occur every year in the United States. Under Connecticut negligence law, a driver is expected to exercise ordinary care on the road – in other words, his driving should resemble that of a reasonably prudent person.

If the driver fails to meet that standard by, for example, driving while intoxicated, running a stop light, speeding, or even driving too fast for the conditions (driving the speed limit during  snow storm, for example, could be considered inappropriate), his driving in considered to be negligent.

Negligence alone, however, is not enough to establish liability, even if an accident occurs. The victim must also prove that the driver’s negligence actually caused the accident that produced his injuries. Once this is proven, in most cases, the defendant can only avoid liability by asserting a valid defense (comparative negligence, for example, if the accident was mostly the fault of the victim).

How Medical Malpractice Claims Work

A Connecticut medical malpractice claim works a lot like an ordinary personal injury claim. For example, there is a standard of care that a healthcare provider is expected to meet, and failure to meet it can constitute negligence. If this negligence causes harm to the patient, then the defendant can be held liable for compensation. In other ways, however, a medical malpractice claim is very different from an ordinary personal injury claim.

In Connecticut, the basic features of a medical malpractice claim that distinguish it from an ordinary personal injury claim are:

  • A “good faith” requirement (see below);
  • A pre-existing doctor-patient relationship;
  • The defendant is being sued in his capacity as a medical professional (not limited to physicians);
  • The negligence that is alleged must be of a medical nature;
  • The alleged harm must have involved some degree of medical judgment; and
  • The alleged harm was related to medical diagnosis or treatment.

The Good Faith Requirement

The good faith requirement is designed to prevent overly zealous litigants from hobbling the legal profession by flooding the courts with frivolous medical malpractice lawsuits. It is not a requirement in an ordinary personal injury lawsuit. Under the good faith requirement:

  • You or your lawyer must make a reasonable inquiry to determine that there are grounds to believe that you have been victimized by medical negligence in your care or treatment.
  • You or your lawyer must file a certificate from your or your attorney (typically attached to the initial Complaint) attesting that you conducted a reasonable inquiry that led to a good faith belief that grounds exist for a lawsuit against each defendant.
  • The good faith certificate must include a written and signed opinion of a similar healthcare provider (i) stating the provider’s opinion that there appears to be evidence of medical negligence, and  (ii) providing a detailed basis for this opinion.
  • You can petition the court clerk for an automatic 90-day extension of the statute of limitations to allow you to investigate and prepare the good faith filing.

Your lawsuit will be dismissed if you fail to comply with the foregoing good faith requirement.

The Doctor-Patient Relationship

The existence of a doctor-patient relationship is one of the most important elements of a medical malpractice claim. A happenstance witness to an auto accident, for example, doesn’t necessarily establish a doctor-patient relationship by rendering on-the-scene first aid, even if he is a doctor. The definition of a doctor-patient relationship is part of court-made law, and as such, it is not cut and dried.

In general, however, a doctor-patient relationship is formed when someone voluntarily seeks medical treatment or advice from a medical professional. It can also be established by a doctor who is working with another doctor with whom the patient has already established a doctor-patient relationship.

There are two common situations in which Connecticut courts typically decline to recognize the existence of a doctor-patient relationship:

  • When someone submits to a medical examination because he is required to do so by his employer; and
  • When the patient is involved in a lawsuit and is being examined by a doctor retained by the opposing party (to try and prove that his claimed injuries aren’t all that serious, for example).

Medical records can greatly assist a patient in proving the existence of a doctor-patient relationship.

A Doctor’s Duty of Care

One might resort to common sense to determine which acts or omissions by, say, a truck driver, would constitute negligence. Unfortunately, however, it is much more difficult to determine which acts or omissions by a cardiologist treating a particular patient would constitute negligence.

In general, a doctor must exercise the degree of care and skill of the average healthcare provider in the doctor’s particular specialty, considering the medical knowledge available to him.

The Use of Expert Witnesses

An expert witness may be useful in an ordinary personal injury claim. A claimant injured in a truck accident, for example, might bring in an accident reconstruction specialist to help prove that the accident was the truck driver’s fault. Most ordinary personal injury claims, however, do not involve the use of expert witnesses.

In medical malpractice claims, however, expert witnesses are almost always used and they are sometimes used by both sides in a “battle of the experts.” Expert medical witnesses are useful primarily to establish the applicable standard of care under the particular circumstances of the case.

An expert witness can also be useful to determine whether the defendant violated the standard of care, whether the violation actually caused the harm suffered by the patient, and how much future medical treatment the patient might need to undergo.

Contact Us Today

If you have suffered an injury that you believe may have been someone else’s fault, you are going to need a skilled and experienced personal injury lawyer to boost your chances of receiving all that you are entitled to. This is particularly true if you were victimized by medical malpractice, because such cases are often scientifically complex and because doctors are notoriously stubborn defendants.

Contact Berkowitz Hanna today to schedule a free consultation. You can call us today or contact us online to get started. We handle cases throughout Connecticut from our offices in Stamford, Bridgeport, Danbury and Shelton.