What Constitutes Medical Malpractice?

We all have the need for medical treatment at different times in our lives, and Americans are blessed to have a thriving community of highly educated, hard-working, and responsible medical care providers to supply this much-needed treatment. Unfortunately, doctors and other health care professionals sometimes make mistakes. At other times, patients simply don’t get the results for which they had originally hoped. So, if a patient endures a bad medical treatment outcome, does that mean that medical malpractice occurred? The answer is sometimes “yes,” and sometimes “no,” depending on whether the medical care provider has met the applicable standard of care.

Medical Malpractice Law

In a previous article we discussed all the elements that a plaintiff must prove to prevail in a medical malpractice case. Here, we will focus on the concept of negligence in determining whether malpractice has occurred.

Oregon Revised Statutes Annotated Section 677.095 requires a licensed physician to use the degree of care, diligence, and skill used by ordinary physicians under the same or similar circumstances in the physician’s community, or in a similar community. In legal terms, the degree of care which a physician must exercise is called “the standard of care.” Expert witnesses are used to establish the standard of care and whether it has been breached.

Expert Witnesses

Under Oregon Rule of Evidence 702, a witness may testify as an expert if he or she has specialized knowledge that will assist the jury, so long as the witness is qualified by his or her education, training, skill, experience, or knowledge. Usually, because complicated medical information is involved, it falls on other doctors (as witnesses) to establish the appropriate standard of care in a medical malpractice case. 

However, in one interesting case, the Oregon Supreme Court reversed a trial court’s decision not to permit a biomechanical engineer to establish the standard of care in a medical malpractice case. In that case, a neurosurgeon attached a titanium plate to the patient’s cervical spine. Following the procedure, the patient experienced many health problems and had six additional surgeries, including one to remove the titanium plate. Even though the biomechanical engineer was not a medical doctor, he testified to the following: that his profession overlaps with neurosurgery; that he taught in the department of orthopedic surgery in a medical school; and that he had developed his own implant system for spinal surgeries. The Supreme Court found that the engineer had the appropriate background to provide expert testimony in the case, including his opinion that the neurosurgeon incorrectly installed the plate and improperly left screw heads protruding.

Damages and Insurance

Victims of medical malpractice are entitled to recover “economic” damages such as medical bills, medicine costs, and lost wages. Victims are also entitled to recover “noneconomic” damages such as loss of consortium and pain and suffering. While it is not the purpose of this article to discuss damages in great detail, please call us with any specific questions regarding damages, and one of our experienced medical malpractice attorneys will be happy to assist you.

Most doctors, hospitals, and other medical care providers carry malpractice insurance. This insurance pays damages in the event that a medical care provider is found liable for injuries to a patient. The insurance policies also provide one or more lawyers and a legal defense to the insured who has been sued. Therefore, settlement discussions and other communications often occur with the insurance company and lawyers, as opposed to the doctor or hospital.

We have found through the years that insurance companies will vigorously defend most medical malpractice cases and attempt to limit the damages paid to the injured patient. Moreover, the lawyers hired by the insurance company are usually experienced and formidable. Therefore, you should strongly consider consulting with your own legal counsel before attempting to pursue a malpractice claim or negotiate a settlement. At Nelson MacNeil Rayfield we have a successful history in negotiating settlements with insurance companies and winning medical malpractice trials.

Making A Claim

If you have any questions regarding an injury that may have resulted from possible medical malpractice, it is important to consult with a skilled malpractice attorney promptly. Oregon has a two-year statute of limitation for medical malpractice claims. Therefore, an investigation of the potential claim should start even earlier.

Given the complexity of medical malpractice claims and the need for expert testimony to prove a violation of the standard of care, Nelson MacNeil Rayfield thoroughly investigates all of our potential medical malpractice cases before making a final decision on whether a lawsuit is warranted. We use our own knowledge, along with the input of appropriate medical professionals, to determine if the case should be pursued. If a medical care provider’s negligence has caused injury, we strongly believe the medical care provider should be held responsible, just like any other member of society, and we will pursue the claim vigorously.

If you have questions, please contact us for more information


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