An incident of medical malpractice can turn your life upside down. One moment, you may have a relatively healthy life or a minor health problem that you have to deal with. The next, due to the negligence of a medical care provider that you thought you could trust, you may find yourself dealing with severe complications, including complications that could affect the rest of your life.
To file a medical malpractice claim, your attorney will work to establish the 4 Ds of medical malpractice. These four critical elements determine whether you may file a medical malpractice claim based on the circumstances surrounding the medical error that caused your difficulties.
Why Do the 4 Ds Matter?
The 4 Ds of medical malpractice help to establish your right to file a medical malpractice claim. If your attorney cannot show all four elements, you may have a hard time proving that you have the right to compensation for your injuries or for the care that you received at the doctor’s hands.
The 4 Ds will show:
- The doctor bore a duty of care to you at the time of the incident.
- The doctor committed a dereliction of that duty, likely by committing an act of negligence in caring for you.
- The act of negligence caused you to suffer
- Those damages directly stemmed from the doctor’s actions or negligence.
Medical care involves a great deal of complexity and a considerable amount of the unknown. A doctor cannot always know the potential outcome of a course of treatment, even when based on the standard course of care.
For example, while one patient might respond very positively to a medication to treat a specific ailment, another patient, who might have an allergy to those medications, might not respond as well, and might have a negative response to that medication.
However, if the doctor does not know about the allergy, the doctor has not committed negligence or breached a duty of care. Rather, the doctor has followed the standard course of treatment and sought to offer the highest standard of care to patients, but the patient had a negative outcome because of circumstances outside the doctor’s control. In this situation, that patient does not have the right to file a medical malpractice claim, since the doctor did not commit an act of negligence.
1. Duty
To establish grounds for a medical malpractice claim, your attorney must first show that your doctor bore a duty of care to you at the time of the medical malpractice incident. In other words, the attorney must establish that a doctor-patient relationship existed that required the doctor to provide you with a high standard of treatment and care.
A medical care provider with a duty to you could include any medical provider that you see for treatment for general or specific ailments. For example, you might see your general practitioner to deal with common illnesses or minor injuries. If you go to the emergency room, you might rely on the doctor to provide treatment for an emergency condition, like a serious illness or injury. If you have an ongoing condition, you might need to see a specialist to handle that treatment.
If a medical care provider does not have a doctor/patient relationship with you, or an established duty to care for you in a given set of circumstances, you cannot pursue a medical malpractice claim. Suppose, for example, that you have a seizure in a public place, and a doctor standing nearby does not immediately give aid. That doctor did not have an established duty of care to you, and in fact, might not have the tools at their disposal needed to effectively treat a seizure.
Likewise, if you have to go to the emergency room, only the doctor specifically assigned to your care bears a duty of care to you. You might have grounds to pursue a claim against the provider that treated you, but if that provider committed an error that caused a more serious injury, you may not have grounds for a claim against other doctors in the hospital who did not interact directly with you.
2. Dereliction
Once your attorney has established the medical care provider’s duty to you, his next step will include establishing the doctor’s dereliction of that duty, or failure to provide the standard of care you expected and deserved for your personal injury or ailment.
Dereliction takes several forms, including:
Failure to Diagnose
You presented your doctor with a clear set of symptoms. Another doctor, given those symptoms, would immediately have diagnosed a specific condition, or perhaps recommended further evaluation for that condition. Your medical provider, however, failed to note those problems and offer the right course of treatment. Failure to diagnose may occur because of implicit bias, or a healthcare provider’s perception of a patient based on certain factors, like weight, gender, or race.
Medical malpractice might also occur simply because the care provider does not recognize the symptoms or brushes them off based on a quick read of the patient. That failure can have an immense impact on the patient, including worsening symptoms over time.
Misdiagnosis
Like failure to diagnose, misdiagnosis represents a significant dereliction of the doctor’s duty in many cases. To establish misdiagnosis as a medical malpractice event, your attorney may work to show that your doctor diagnosed your condition based on implicit bias or because of an overall unwillingness to listen to you and the symptoms you have presented.
Never Events
Never events, including operating on the wrong part of the body or even performing a procedure on the wrong patient, often occur because of breakdowns in communication or obvious doctor negligence: a doctor that fails to properly check the patient before getting started with a course of treatment, for example.
Birth Injuries
During childbirth, a doctor must carefully monitor both mother and child to ensure the best possible outcome for both patients. Sometimes, however, doctors may grow impatient with a long birth and recommend interventions that ultimately harm the mother or child. Other times, a doctor who does not want to use those interventions may fail to pick up on an obvious problem for the mother or child, seriously injuring them.
Failure to Inform
Before patients undergo serious procedures, especially those that could have significant side effects or complications, doctors must provide their patients with a strong understanding of exactly what they should expect. Doctors do not have to lay out every possible side effect a patient might face, especially rare potential side effects. Doctors, however, must present their patients with the information needed to make informed decisions about a procedure.
If a patient would have chosen not to undergo a procedure with a better understanding of the potential side effects, and a doctor chooses that treatment without informing the patient of the risks, the doctor may face a medical malpractice claim.
A doctor does not have to inform the patient of the risks when the patient cannot consent to treatment. For example, if an unconscious patient in the emergency room requires life-saving treatment, the doctor may not require consent.
Knowingly Performing Unnecessary Procedures
Many acts of negligence on the part of a doctor occur due to a simple lack of attention. These incidents can occur seemingly by accident. Sometimes, however, negligence can take on a more sinister form: deliberately performing unnecessary procedures or prescribing unnecessary medications to a patient to raise the charges issued to that patient. Those unnecessary procedures can cause immense complications for the patient and serve primarily to line the doctor’s pockets.
3. Damages
Once you have established that a medical provider bore a duty of care to you and violated that duty of care through an act of negligence, your attorney will move to the third D: damages. To establish your right to compensation, you will need to show that the doctor’s negligence damaged you.
Some damages appear obvious, such as the need for further medical treatments to repair the damage caused by the doctor’s negligent act, for example, or permanent disability suffered because of a doctor’s error. Other damages, on the other hand, may appear less clear, including ongoing pain and suffering or the need to miss work for an extended time while you recover from the doctor’s error and any procedures needed to treat it. To file a medical malpractice claim, however, you will need to show damages.
Suppose, for example, that your doctor failed to diagnose a urinary tract infection. If you recovered on your own, without antibiotics, you might not have the right to pursue a medical malpractice claim. On the other hand, if the infection moved into your kidneys, ultimately requiring hospitalization to fully treat you, you may have the right to a medical malpractice claim.
Likewise, suppose a doctor failed to inform you about a very common side effect of a medication prescribed to treat a condition. If you had known about the likelihood of that side effect before taking the medication, you likely would have chosen a different course of treatment. However, if you did not suffer that side effect and did not suffer any damages due to that medication, you do not have grounds for a medical malpractice claim against that medical care provider.
4. Direct Cause
Finally, once you have established grounds for a medical malpractice claim based on the doctor’s duty to you, his or her dereliction of that duty, and the damages caused to you due to the doctor’s negligence, you must establish that the doctor’s actions directly caused your damages.
Suppose, for example, that you broke your leg and required a surgical repair. You did not follow your post-surgery instructions, including bearing weight on your injured leg before your doctor cleared you to do so. As a result, you required an additional operation, and may even have ended up with permanent damage to your leg. However, the doctor’s actions did not directly cause your actions, since you failed to follow instructions. Therefore, you may not have grounds for a medical malpractice claim.
On the other hand, if you followed all of the doctor’s instructions, but your surgery failed because of an error on the doctor’s part, you may have grounds for a medical malpractice claim.
Sometimes, following an incident that compromised your care, it may prove difficult to establish direct cause. Often, your doctor may try to blame part of the error on you to avoid medical malpractice charges. Working with a medical malpractice lawyer can make it much easier to connect with expert witnesses and get the evidence you need to establish how the doctor’s act of negligence led to your injuries.
Do You Need a Medical Malpractice Attorney?
If you suffered medical malpractice that caused serious injuries or damages, an attorney can help you learn more about your legal rights and collect the evidence to establish the 4 Ds in your medical malpractice claim.
Furthermore, working with an attorney can help you learn what to expect and even increase your odds of winning your claim. Contact an attorney as soon as possible to learn more about your right to compensation.