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Medical Malpractice
St. Johns University School of Law
McCarty, Edward W.


1. Definition of malpractice

o Malpractice is professional negligence and medical malpractice is the negligence of a doctor. Negligence is the failure to use reasonable care under the circumstances, doing something that a reasonably prudent doctor would not do under the circumstances, or failing to do something that a reasonably prudent doctor would do under the circumstances. It is a deviation or departure from accepted practice.

o A doctor who renders medical service to a patient is obligated to have that reasonable degree of knowledge and skill that is expected of an (average doctor, average specialist) who (performs, provides) that (operation, treatment, medical service) in the medical community in which the doctor practices. If there is evidence that the doctor should have complied with standards that exceed the standards of the medical community in which the doctor practices, the following should be charged. the doctor must also comply with minimum (Statewide, national,) standards of care.

o The law recognizes that there are difference in the abilities of doctors, just as there are differences in the abilities of people engaged in other activities. To practice medicine, a doctor is not required to have the extraordinary knowledge and ability that belongs to a few doctors of exceptional ability. However, every doctor is required to keep reasonably informed of new developments in (his/her) field and to practice (medicine, surgery) in accordance with approved methods and means of treatment in general use. A doctor must also use his or her best judgment and whatever superior knowledge and skill (he/she) possesses, even if the knowledge and skill exceeds that possessed by the (average doctor, average specialist) in the medical community where the doctor practices.

o By undertaking to perform a medical service, a doctor does not guarantee a good result. The fact that there was a bad result to the patient, by itself, does not make the doctor liable. The doctor is liable only if (he/she) was negligent. Whether the doctor was negligent is to be decided on the basis of the facts and conditions existing at the time of the claimed negligence.

o A doctor is not liable for an error in judgment if (he/she) does what (he/she) decides is best after careful evaluation if it is a judgment that a reasonably prudent doctor could have made under the circumstances.

o If the doctor is negligent, that is, lacks the skill or knowledge required of (him/her) in providing a medical service, or fails to use reasonable care in providing the service, or fails to exercise his or her best judgment, and such failure is a substantial factor in causing harm to the patient, then the doctor is responsible for the injury or harm caused.

o A doctor’s responsibility is the same regardless of whether (he/she) was paid.

2. What is the burden of proof and what does it mean?

o The burden of proof rests on the plaintiff. That means that it must be established by a fair preponderance of the credible evidence that the claim plaintiff makes is true. The credible evidence means the testimony or exhibits that you find to be worthy to be believed. A preponderance of the evidence means the greater part of such evidence. that does not mean the greater number of witnesses or the greater length of time taken by either side. The phrase refers to the quality of the evidence, that is, its convincing quality, the weight and the effect that it has on your minds. The law requires that in order for the plaintiff to prevail on a claim, t

the red blood cells stay as they are and they pool at area of the body where gravity applies (i.e. die on your back, blood cells collect at your back).

§ A body cools at the rate of 1 degree per hour in absolute perfect conditions.

§ Obesity and warm environments slow cooling

o Visible 30-60 minutes after death

o Red cells settle and skin below turns red

o In 6-10 hours, color becomes permanent.

10. What is your fee schedule for a medical malpractice case

o 30% of the first 250,000

o 25% of the next $250,000

o 20% of the next $500,000

o 15% of the next $250,000

o 10% of any amount over $1,250,000

11. What is a post-mortem form looks like

o Name, date, time, pathologist NDTP

o External Exam:

§ Chest, fingers, elbows, legs (CEFL)

o Internal Exam:

§ Lungs, heart, liver, large intestines, small intestines, kidneys, stomach, brain, body fluids (9) BBHKLLLSS

§ Muscular system

§ Skeletal system

§ Nervous system

§ Digestive system

§ Respiratory system

§ Excretory system

§ Circulatory system

§ Lymphatic/immune system

§ Reproductive system

§ Endocrine system

§ Toxological report (11) CDEELMNRRST

o Cause of Death

o Certification

o Results (What the autopsy report will include):

§ History

§ External exam

§ Internal exam

§ Tox report