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Establishing Fault In Three Common Medical Malpractice Scenarios

5 February 2015

Alexis Garcia

Medical malpractice suits can be pretty messy, and it's essential that you have an experienced personal injury attorney on your side if you attempt to sue for medical malpractice. One of the first things your lawyer will determine is who is likely to be held liable for your injuries. Is it the hospital or the doctor? In many cases, doctors are not employees of hospitals, so when an error made by a doctor results in injuries, the case is typically made against the doctor and not the hospital. However, this is not always the case. To help you gain a better understanding of liability in malpractice suits, here's a look at three possible scenarios and who is likely to be held liable in each case.

Scenario 1: A nurse accidentally administers a double dose of a medication, leading to kidney damage.

Nurses are generally employees of hospitals, so in this scenario, the hospital will typically be held liable for damages caused by the nurse's error. In order to prove that the hospital is responsible, your lawyer will need to present evidence that proves that the nurse acted negligently.

There is one case in which this scenario would allow a doctor to be named liable rather than the hospital, and that is if a doctor was supervising the nurse when the medication was administered. If this were the case, the doctor could likely be named liable for the damages, rather than the hospital.

If an x-ray technician, certified nursing assistant, or any other hospital employee were to make a similar mistake, the hospital would also be held liable.

Scenario #2: A doctor with no prior history of medical negligence makes an error during surgery, resulting in permanent paralysis of a leg.

Since it is the doctor who made the mistake in this scenario, it is he or she who will be held liable. Keep in mind that in most cases, medical malpractice insurance will cover the damages when a doctor makes an error; your lawyer will likely settle the case with the doctor's insurance company and collect damages from them, rather than directly from the doctor.

The fact that the doctor has no prior history of negligence does not get him or her off the hook for this mistake. However, in the rare case that a doctor is legally an employee of the hospital, the hospital could be held liable for this mistake.

Scenario #3: A doctor who has a long history of substance abuse, of which the hospital is aware, accidentally administers the wrong medication, leading to respiratory distress and brain damage in the patient.

This scenario is a little more complicated than the other two. A mistake was clearly made by the doctor, so one might assume that he or she would be held liable as long as the doctor is not an employee of the hospital. However, this assumption would be incorrect. In this scenario, the hospital is likely to be held liable, since they were aware of the doctor's history of substance abuse, yet allowed the doctor to continue treating patients.

As in all personal injury cases, determining fault is all about proving negligence. In this case, your lawyer would have a pretty easy time proving that the hospital was negligent in allowing this doctor to practice, and that this negligence led directly to the injury.

Every case is different, and if you are injured in a medical setting, there's a good chance your scenario is even more complex than the ones above. Seek the assistance of a personal injury attorney as soon as possible after a medical mistake leads to an injury. Also, make sure you write down all of the details so your lawyer can use them to build a case. As you can tell from the scenarios above, details such as who was in the room and who administered a medication are very important for establishing fault.

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