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To sue a doctor for medical malpractice or a lawyer for legal malpractice, one must prove certain elements in order to have a successful case.
While this is a guide to some situations or events that need to occur before one can sue a doctor or lawyer, it is imperative to remember that each case should be evaluated on its own specific facts.
Consulting with a qualified medical or legal malpractice attorney will ensure that your claim has merit and may be successful in court or settlement negotiations.
Proving Medical Malpractice
Medical malpractice occurs when a healthcare provider fails to adhere to the standard of care when providing treatment. Examples of medical malpractice include:
- Wrongfully diagnosing a disease or condition
- Failing to provide treatment
- Unreasonable delay in treating a diagnosed condition
- Failing to warn a patient of the known risks of a treatment.
To prove that medical malpractice occurred, the plaintiff, or individual bringing the case, must show that:
- A physician-patient relationship existed. This means that the patient hired the doctor, and the doctor agreed to provide care.
- The doctor was negligent. Being unhappy with your care is not negligence. It must be shown that a doctor caused harm in a way that a competent doctor, under the same circumstances, would not have.
- The doctor’s negligence caused the injury. This is a “more likely than not standard” – that the doctor’s conduct more likely than not directly caused the injury.
- The injury led to specific damages. These can be economic or non-economic – for instance, pain and suffering.
Proving Legal Malpractice
Legal malpractice is deemed to have occurred when a lawyer failed to use the ordinary skill and care that would be used by other lawyers in handling a similar case under similar circumstances.
For a legal malpractice case to exist, the plaintiff, or person bringing the case, must prove the following:
- That the attorney owed the client a duty to act properly;
- That the attorney was negligent in that duty;
- That the negligence harmed the client;
- And that the client suffered financial loss as a result of the negligence.
Simply losing a case is not grounds for a legal malpractice suit.
Jon Friedman, from the Law Offices of Jon Friedman, is experienced in handling medical malpractice and legal malpractice cases. If you, or a loved one, have been the victim of medical or legal malpractice, we welcome your call to our Portland area office at (503) 242-1440.