The term “medical malpractice” refers to the negligence of a hospital, doctor, nurse practitioner, nurse, or any combination thereof. The concept of “medical malpractice” does not include claims for “informed consent,” although it is not uncommon for someone with a medical negligence claim to also assert a claim against a doctor or other medical professional for lack of informed consent1.
Oregon law (ORS §677.095) articulates the legal test a patient must meet to establish a claim for medical malpractice. In sum, to establish malpractice the patient-plaintiff must prove that the medical care in question failed to “meet the standard of care” utilized by ordinarily careful physicians in the same or similar circumstances, and in the same or similar community. It is important to recognize that as a practical (and legal) matter, in order to meet their “burden of proof” in this regard a medical malpractice plaintiff must retain an expert physician to review the evidence (medical records, diagnostic imaging, depositions, etc.) and confirm that the medical care in question “fell below the standard of care.” (Although it is very easy for a physician-defendant to locate numerous potential expert doctors to help them defend a claim, it is very hard for an injured patient-plaintiff to locate an expert physician who is willing to confirm that a fellow physician was negligent).
Even assuming that an injured patient-plaintiff can prove that the care that their doctor or other health care provider was negligent, the patient-plaintiff still faces a second, often equally formidable challenge; that being proving that the negligence caused the patient injury. Often when I am explaining these matters to a new client, I will use a hypothetical cancer malpractice “delayed diagnosis” case to illustrate this concept: there are cases where one can prove that a physician was negligent in not suspecting or recognizing or testing for cancer, such that the diagnosis of the condition was delayed, and yet due to the nature of the type of cancer or other circumstances the delay did not cause the patient additional injury.
Medical malpractice cases are – usually – difficult. I have worked on both sides of these cases (although we have only worked for injured patients since March of 1995) and through that experience have come to learn that most jurors tend to give medical malpractice defendants “the benefit of the doubt” such that if the evidence in a given case is somewhat equivocal, usually the jury finds for the defense.
We are available to speak with you by telephone or in-person to discuss your potential malpractice case. It is important to keep in mind that, subject to a narrow exception, pursuant to Oregon’s “statute of limitations” law, a person has only 2 years from the date on which they receive negligent care within which to file suit.
1Generally speaking, a patient can assert a claim for “lack of informed consent” if their physician fails to, before treating them, inform the patient in general terms of: (1) the procedure or treatment to be undertaken; (2) that there may be alternatives; and (3) of the material risks of the proposed treatment. The physician must also ask the patient if they want more detailed information, and provide the same if requested. ORS §677.097. A patient asserting an informed consent claim must prove that they would not have agreed to receive the recommended care had the physician provided them with the required information, and must also prove that they suffered injury or other damage as a consequence.