What are the most common defenses to orthopedic malpractice claims?

Before discussing orthopedic malpractices, it is important to know what a medical malpractice claim is. Medical malpractices occur when a doctor fails...

Written by Clare Louise · 1 min read >

Before discussing orthopedic malpractices, it is important to know what a medical malpractice claim is. Medical malpractices occur when a doctor fails to owe a duty of care to the patient and provides a treatment that is below the standard level of care. These claims are quite complicated because it involves technical factors and complex elements about medical technologies, medical science, and risk assessment. Hence, if there has been a malpractice case, the patient will need to seek legal representation from an orthopedic malpractice attorney. These attorneys have good knowledge about the standard of care, basic medical science and human anatomy. However, there’s a need for an orthopedic expert witness to prove that there has been a malpractice. This is because the defense can raise a number of arguments during the court trials. The lawyers and expert witnesses are quite aware of these defenses and therefore, they work in close collaboration to build the case strong. If you want to file a lawsuit against a medical practitioner, you should also be ready to face counter-attacks. Here mentioned are some of the defenses which might arise in a court proceeding.

  • Forseeability– Forseeability is the ability to predict a damage that can arise due to an action. For instance, a doctor should predict what side effects a patient will suffer due to a medication. Therefore, the doctor should prescribe medications that will not cause any side effect. Similarly, orthopedic surgeons are responsible for foreseeing the potential risks and damages before performing surgeries. For instance, in a medical malpractice case, a patient has suffered damages due to wrong medications. In this regard, the doctor can argue that the side effects were so rare that it was impossible to predict.
  • Patient has contributed to the injury– In this; the defendant might counter-attack and say that the patient has suffered injuries because of failure to abide by the medical advice given by the doctor. For example, a doctor might ask a patient to avoid any kind of sports activities for few months after ankle surgery. So the patient will contribute to the injuries if he engages in sports activities.
  • The risk was recognized by the patient– If the doctor explains all the risk factors to the patient before performing a surgery, and the patient gives his consent to perform the surgery, the surgeon will not be liable for the injuries caused to the patient after surgery. In this case, the doctor will claim that the injury caused to the patient was ‘recognized risk’ as the entire process was explained to the patient before performing the operation

These are some of the areas where the defendant can counter-attack the plaintiff. Therefore, it is very important to get medico-legal advice from expert witnesses as they are well-versed in this matter. If you think that you need assistance, you should immediately get in touch with a reputed lawyer so that you can get your compensation as soon as possible.

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