Medical Malpractice

This is one of the most hotly contested areas of the law today. Last night, our President of the United States, Barack Obama, discussed a need to change our system involving Medical Malpractice cases. In Missouri, we have already had several rounds of "tort reform" related to Medical Malpractice cases.

Today, Attorneys need to take a hard look at potential Medical Malpractice claims. It is clear that there are cases where a physician or other health care provider is operating below minimum standards and should be pursued for bad acts they commit.

Many times people who have a bad result after a surgery, or suddenly discover they have a fatal disease, or suddenly lose a loved one without much explanation, want answers and believe that there must have been Malpractice because they can't get complete answers for what happened. Usually, in those circumstances, the horrible results tug at the heartstrings of the Attorney who honestly desires to help their potential client. Attorneys must remember, though, that there are several important questions which have to be answered positively before it is appropriate to file a Medical Malpractice action.

First, did the health care provider "fail to use that degree of skill and learning ordinarily used by other members of their profession when faced with the same or similar circumstances"? Remember, that simply having a bad outcome does not mean there has been Malpractice. There must have been an act or a failure to act which is below the standard of care for other similar health care providers. Second, does another health care provider believe there was Malpractice? An Attorney contemplating a case would be wise to get an opinion from an expert health care provider in the same practice area as the potential defendant before filing suit or making a demand. This opinion must state that the health care provider failed as described above. Further, that opinion must indicate that the patient/plaintiff was damaged by those acts or failures to act and that there is a direct relationship between the acts complained of and the damages. The law currently states that such a letter must be filed within a short time after a lawsuit is filed. It would be unwise to file a suit without already possessing that letter.

There are good reasons that we have the above listed requirements (among many others). We do want to make sure that our health care providers can practice medicine without too much fear of lawsuits. We want to make sure that suits we file are for good reason. We also want to be sure we can legally pursue those health care providers who aren't providing good medical care and who shouldn't be practicing medicine. Until we have further modification of our legal system, we need to use what we have to ensure good quality healthcare to Missourians.

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