Basic Elements in Medical Negligence Claims

Medical negligence, in legal sense, is the act or failure to act in accordance with the accepted standards of the health care practice. In many occasions, these performances or omissions have been the cause of numerous accounts of personal injuries and deaths in the United States.

Due to these scenarios, the government has ratified the necessary laws to give the injured victims the right to recovery.

This article seeks to provide basic information about medical negligence and how can the injured victims pursue their legal actions with the help of credible and reliable medical negligence lawyers.

The Contending Parties

A medical negligence claim generally has two opposing parties: the plaintiff or the injured person and the defendant or the healthcare provider who allegedly failed to abide by the standards of his/her profession. In cases of wrongful deaths, the patients' survivors are given the right to file their suits of behalf of the deceased.

Although most people may assume that health care providers pertain to physicians, these professionals may also include nurses, dentists, laboratory technicians and therapists. In some occasions, the hospitals or clinics, where the malpractice happened, are also being charged for some kind of negligence.

Establishing the Elements of the Case

Normally, the plaintiffs in a medical negligence action have to establish the following elements of their cases in order to end up with favorable results and biggest recoveries:

o The healthcare provider owes a legal duty to provide care or treatment to the patient or plaintiffs

o The defendants have breached their duty of adhering to the appropriate standards of their professions

o The breach was indeed the proximate reason of the victims' injuries

o The plaintiffs have sustained have sustained injuries and damages or died due to the defendants' negligence (a claim does not exist without any damages to recover)

Possible Recoveries Available

In pursuing a claim with medical negligence lawyers, the plaintiffs may be eligible for these types of damages:

o Compensatory Damages - These may include economic (financial losses such as medical expenses, lost wages etc.) and non-economic (physical and emotional sufferings such as loss of enjoyment, severe body pain, emotional distress and loss of relationship among others)

o Punitive Damages - These are based on the statutory provisions of the existing laws that involve reckless and negligent actions

The Need for Expert Legal Assistance

Since most cases of negligent torts entail various intricate law and legal procedures, many victims of medical malpractice, who do not fully understand their rights, choose not to further pursue their case. Indeed, filing a lawsuit without the assistance of credible medical negligence lawyer is just like a warrior without a weapon.

For an instance, proving liability certainly necessitates enough evidences. Without the help coming from a lawyer, the plaintiffs may not know the vital documents to gather. The legal process may also take long period. An able legal advocate can take charge of the case while the victims spend their time with their families or attend medical treatment sessions.

Thus, it is definitely important for medical negligence victims to have someone who can help them with their claims. With expert advice and representation, the plaintiffs will have better opportunity to obtain justice.

Pennsylvania Personal Injury Attorney And Pennsylvania Personal Injury Contributory Negligence

The defendants have the burden of proving the existence of contributory negligence. Defendants must prove that plaintiff acted unreasonably under the circumstances and that her conduct was a substantial factor in causing her injuries. Hanlon v. Sorenson, 289 Pa. Super. 268, 433 A.2d 60 (1981). It is not plaintiff's burden to prove her freedom from any such negligence.

Contributory negligence can be found as a matter of law only in clear cases. Arco v. Goodstein, 265 A.2d 783 (1970); Dolin v. J.J. Newberry Company, 466 A.2d 174 (Pa. Super. 1983). There can be "no room for fair and reasonable disagreement as to its existence." Skalos v. Higgins, 449 A. 2d 601, 604 (Pa. Super. 1982.) Plaintiff is required to use only the ordinary care that a prudent person would use under the circumstances. Peair v. Home Associations of Enola Legion #751, 430 A.2d 655 (Pa. Super. 1981).
Defendants often cite the Restatement (Second) of Torts § 343A in concluding that plaintiff was contributorily negligent for an accident. Section 343A protects possessors of land from liability from "known" or "obvious" dangers, "unless the possessor should anticipate the harm despite such knowledge or obviousness."

To be "known", the danger must "not only be known to exist, but ... also be recognized that it is dangerous and the probability and gravity of the threat and harm must be appreciated." Berman v. Radnor Rolls, Inc. 542 A.2d. 525, 531 (Pa. Super. 1988), citing, Carrender v. Fitterer, 469 A.2d. 120, 124 (Pa. 1983).

What constitutes an "obvious" danger is an issue of fact for the jury's determination, requiring denial of a Motion for Summary Judgment. Brown v. Sears Robuck and Company, E.D. Pa; Hutton, J.; July 18, 1990; no. 89-3556; slip op.
"A danger is deemed to be 'obvious' when 'both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence and judgment." Id., citing Carrender, at 123 (emphasis added.) It is, therefore, crucial to consider the perception, intelligence and judgment of a plaintiff at the time of this accident in order to determine whether the danger presented by the sign frame was "obvious" to her.

In Berman, supra, the Superior Court ruled that the trial court's refusal to charge the jury on the issues of "known" or "obvious" dangers was proper. In Berman, the plaintiff was roller skating. After he was bumped by another skater, this plaintiff lost his balance, skating through an opening in a railing onto a carpet area and down a six-inch drop off in the floor level. Ultimately he struck his head against a cabinet or shelf which protruded beyond vending machines.
The condition of the rink, the wide entrance, the six-inch drop off and the placement of the vending machines were all apparent. None of the conditions were concealed in any way. Nevertheless, the Court could not say that these conditions would be "known" or "obvious" to a reasonable person in the position of the plaintiff. The court carefully considered that this skater lost and regained his balance while traveling at a good rate of speed. He did not have an adequate opportunity under the circumstances to recognize the danger the six-inch step posed to him.

The Court in Berman concluded that while the skater was charged with the general risks of skating, he was not charged with knowledge of how the risk to him was increased above that caused by normal skating by the physical lay out of the building. Id. at 536.

Pennsylvania Medical Negligence Lawyer

Need a Pennsylvania Medical negligence lawyer? This malpractice is something that occurs all too often in today's society, and many people suffer as a result of this negligence This is a term that covers a wide range of negligent acts in the medical field, and it doesn't just apply to doctors and nurses but also to other professionals such as dentists, midwives, and opticians. With alawyer from Pennsylvania residents can ensure that they receive both justice and damages for any injury or harm they come to as a result of this negligence and every year many people successfully claim huge compensation settlements as a result of carelessness.

By finding an experienced and qualified attorney residents can increase their chances of claiming for expenses, pain, and injury caused through negligence Unfortunately some people are also killed as a result of medical negligence and with the help of a good lawyer residents that have lost a loved one through this negligence can also file a successful claim for damages. Your lawyer will be able to put together a solid lawsuit to prove negligence and to get you as much in the way of financial compensation as possible.

There are many different scenarios that can come under the umbrella of negligence and an experienced lawyer will have already dealt with many or perhaps all of these. They can include wrong site surgery, misdiagnosis, prescribing the wrong medication, refusing to treat a patient, inappropriate treatment, and various other negligent acts. It can be difficult to prove neglect in some cases, which is why it can be so vital that you have a legal expert with experience and specialist knowledge to help you with your case.

Although it can be expensive to hire a medical negligence lawyer Pennsylvania residents will find that it is also necessary in order to prove many cases of law suites finances can be a big problem for many people though, and this is where a prepaid legal services plan can prove invaluable. With a prepaid plan you don't have to find an unexpected lump sum for legal assistance - you simply pay a small monthly premium and you can benefit from advice and assistance from an experienced and skilled lawyer.

Negligence - When Does an Accident Create Legal Liability?

The law in Pennsylvania has special provisions about when children can be held responsible for their negligence (carelessness resulting in harm to another or themselves). Under certain circumstances, children are held incapable of negligence and, in others, they have to take legal responsibility for their careless acts.

A special rule applies when someone attempts to sue a child for negligence and when someone tries to defend a negligence lawsuit brought on behalf of an injured child by claiming that the child was guilty of negligence that contributed to causing the child's injuries (contributory negligence). The rule is age-based and the rationale behind it is that, below a certain age, children should be assumed to be incapable of guarding against danger, but as children get older, they are capable of being more careful.

Pennsylvania law conclusively presumes that a child under 7 years old is incapable of negligence. So, a child under the age of 7 cannot be held legally liable for negligent acts and someone defending a case brought by an injured child under the age of 7 cannot defend the case using an argument that the child was guilty of contributory negligence.

At age 14, children are presumed to be capable of negligence and can be held liable for the actions unless it can be proven that, for some reason, such as lack of intelligence or experience, it would unfair to hold a child liable.

Children between the ages of 7 and 14 must be looked at on a case-by-case basis to determine whether or not they exercised care consistent with an average child of the same age, intelligence and experience. Between the ages of 7 and 14, as a child gets older, it is more likely that he or she will be held responsible for negligence.

The law does not judge children by adult standards, such that even a 15, 16 or 17 year old will not be expected to exercise the care of an adult because children of such ages do not have the experience and wisdom of adults. Instead, children are required to exercise the care of an average child of the same age, intelligence and experience, and will be held negligent only if their conduct falls below that standard.

In Pennsylvania, children are considered adults at age 18 and, at that time, can be held liable for negligence or contributory negligence. However, prior to age 18, these special rules must be applied to determine whether or not a child can be held responsible for careless actions.

It Was Your Fault, Not Mine - The Comparative Negligence Defense

The primary defense in a Personal Injury Negligence case, like a car accident or slip and fall case, is that the injured person contributed to causing the accident. In Pennsylvania, this is called the Comparative Negligence Defense. The defense, if proven in Court, can reduce the compensation owed to a victim of an accident or completely eliminate the victim's ability to recover.

The History of Contributory Negligence in Pennsylvania
Before 1976, Negligence Law in Pennsylvania recognized the defense of Contributory Negligence. Under a Contributory Negligence defense, if a defendant could prove that the injured party was negligent and was in any way responsible for causing the accident, he would not be able to recover any compensation in Court.

Many states, including Pennsylvania, felt that Contributory Negligence was much too harsh a rule because, if the injured party was determined to be negligent but the defendant was much more responsible for the accident, the injured party would still be barred from recovery. In the harshest case, even if the injured party was 1% responsible and the defendant 99% responsible, the injured party would still be unable to recover compensation for his injuries in Court.

The Comparative Negligence Rule
In 1976, the Pennsylvania legislature adopted a Comparative Negligence Statute for negligence cases involving death, personal injuries or property damage. The Comparative Negligence Statute applies to all Personal Injury cases in which negligence is claimed, including car, truck and motorcycle accidents and slip and fall cases.

Pennsylvania's Comparative Negligence Statute states that the fact that an injured party may have been negligent shall not bar recovery where the negligence was not greater than the negligence of the defendant, but any damages sustained shall be diminished in proportion to the amount of negligence attributable to the injured party.

There are two parts to the Comparative Negligence rule. First, there is a greater than 50% rule. If the injured party is greater than 50% responsible, he cannot recover. If he is 50% responsible or less, he can recover. Second, the injured party's damages must be reduced by the percentage of his responsibility for the accident.

At the end of a personal injury trial, the judge will instruct the jury that they must decide whether the defendant was negligent and whether the injured party was also negligent. If the jury determines that both were at fault for the accident, the judge will instruct them to assign fault in percentages; that is, 50% injured party/50% defendant, 60/40, 80/20, 25/75, etc. Then, the jury is instructed to award damages for the injured party's losses.

After the verdict is rendered, the injured party cannot recover damages if the jury found his fault 51% or higher. If the jury determined that it was 50% or lower, the injured party can recover, but the damages which the jury calculated will be reduced by his percentage of fault. For example, if the jury finds the negligence 20% to the injured party and 80% to the defendant and calculates the damages as $100,000, the injured party's verdict gets reduced by 20% to account for his 20% fault and he actually receives $80,000.

Comparative Negligence is the most common defense in Personal Injury cases. Pennsylvania's system of Comparative Negligence allows an injured party to recover so long as he is not more than 50% responsible for the accident, but reduces his recoverable damages by his percentage of fault. The system attempts to be fair to both the injured party and the defendant by holding both of them responsible for their role in causing the accident.