A medical malpractice claim is where you file suit against a physician or other medical professional to compensate you for an injury related to your medical treatment.
Generally speaking, for a valid claim you’ll have to show the physician or medical professional a duty of care to you, that he or she breached that duty, and that the breach of that duty caused your injury.
It’s simple: duty, breach, causation, and injury.
Breach of the duty of care is proven by showing that he or she violated the standard of care applicable to physicians or other medical professionals in your jurisdiction. In Kentucky, expert testimony would likely be required to show this violation of the standard of care.
Sometimes people think that someone can’t sue and recover for an “honest mistake.” That’s not true. In Kentucky, that only means the injury was not done deliberately. As it turns out, almost all medical malpractice lawsuits are due to negligent acts that caused injury, rather than deliberate acts. That an injury was not intended is not a defense to a claim of medical malpractice.
People also sometimes think that if a doctor warns them of a risk and they consented to the procedure, that immunizes the doctor from all liability. That’s not true either. In Kentucky, that the patient was warned of a potential risk and consented to the procedure anyway is not a defense for malpractice where the provider otherwise breached the standard of care.
Conversely, a bad outcome alone does not mean malpractice occurred. You still have to show the doctor violated the standard of care. Warning of potential risks is part of the standard of care, so a failure to warn of a risk that is unhappily realized could be a breach of that standard, but simply warning of the risks does not immunize the provider from a malpractice claim.
Kentucky has a one-year statute of limitations for medical malpractice claims, but this could be tolled (pushed back) if you didn’t know about the injury, as when a sponge or medical instrument was left from a long-ago procedure and only discovered when it causes a problem. If you think you have a medical malpractice claim, it’s best not to delay in speaking to an attorney.
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This is a blog post, not specific legal advice. No attorney-client relationship is intended or created.