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Proving medical negligence is something that takes careful consideration. Medical negligence happens as a result of an error in treatment, diagnosis aftercare or all three. For most medical malpractice cases, the patient is seeking to prove negligence was a result of their care. Negligence is simply the failure of the doctor, hospital, or other healthcare provider to give competent, reasonable care to the patient. What is considered competent care is typically set forth by another physician or other type of healthcare provider. Figuring out how to prove medical negligence is a matter of building your case and making sure you have the necessary elements of a strong case.
To prove negligence, the patient (or her or his representative) must prove four elements: duty, breach, causation, and damages. If any of the four elements are not present, then the lawsuit will be summarily dismissed by the court and a jury will never hear the case. Two of the elements that are typically not an issue in a medical malpractice case: duty and damages. Duty is a matter of law and a duty is almost always owed by a healthcare provider to her/his patient. Further, the patient typically does not have a problem proving they were damaged. Proving damages in a medical negligence case is the easiest part of building a strong case. The two most difficult elements to prove in a medical malpractice case are: breach and causation.
Here we are mainly focusing on negligence action in medical malpractice. This gives you a better idea on how to prove medical negligence. But in some cases medical negligence cases there are other types of actions that can be brought forth by a patient that is not rooted in negligence. These include violations of the Emergency Medical Treatment and Active Labor Act (EMTALA), (42 U.S.C.S. § 1395dd) (patient dumping statute) which is prohibits hospital emergency rooms from denying care to any patient or dumping a patient that is not stabilized. Violations of the Unfair Practices Act (NMSA 1978, §§ 57-12-1 through 57-12-24) which prohibits hospitals or doctors (and any other business) from making misrepresentations to the patient. Violations of New Mexico’s Fraud Against Taxpayer’s Act (FATA) (NMSA § 44-9-1 through 44-9-14) or the Federal False Claims Act (31 U.S.C. 3729-3733) (commonly referred to as a Qui Tam or whistleblower’s action) if a hospital or doctor falsely or fraudulently presents medical bills for payment to Medicare or Medicaid. Battery (failure to obtain informed consent), and assault cases (typically sexual assault cases).
Now that you know a little more about negligence cases and how they can affect you or a loved one, you are empowered to take action. If you are attempting to find out if you have a strong medical negligence case, don’t hesitate to contact us. Here at the Davis Kelin Law Firm we will fight for you to the finish and help you receive the compensation you deserve. We fight for the little guy when nobody else does! We will build your case to take on any type of negligence. You don’t deserve to be wronged and have the wrongdoer free of guilt while you suffer! Call 505-242-7200 to discuss your case and we will have our attorneys ready to serve you!
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