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When you receive medical care, you should always be able to expect you’ll be treated in the best way the medical professionals know how. Sometimes, mistakes can be made, however, or surgery outcomes may not be what was expected. Are these always considered cases of medical malpractice? How can you tell when something is done out of negligence or when it was simply human error or a calculable risk of the procedure?

Are Mistakes the Same as Malpractice?

Just because a mistake happens during the course of medical care doesn’t necessarily mean that malpractice occurred. In order for something to meet the legal definition of malpractice, the doctor or medical professional must be proven to have been negligent in some way –in other words, they did not exhibit reasonable skill or competence, and that it was the incompetence that harmed the patient. The key in being able to prove this is by comparing what your doctor, nurse, or other medical professional did to what a different doctor—one with the same specialty and similar training—would have done in the same situation. Medical malpractice lawyers can be instrumental in proving negligent care.

Less-than-Favorable Surgery Outcomes

Sometimes, surgery does not have the expected or ideal outcome – for instance, a resulting infection or something not being completely cured post-op, but that doesn’t necessarily constitute a case of malpractice. Things that could be considered malpractice in regards to surgery include wrong-site surgeries, puncturing internal organs, or leaving surgical supplies in someone’s body – things that can be considered negligent behavior. Anesthesia errors can fall under this category—too much or too little anesthesia have problems all their own, and other errors include not monitoring the patient’s vital signs during surgery, improperly intubating a patient, using defective equipment, and failing to investigate the patient’s medical history in checking for possible complications with anesthesia.

Missing a Diagnosis

Missing a diagnosis is a serious mistake, and one that can have grave consequences. Misdiagnosis or delayed diagnosis account for a large percentage of malpractice claim, perhaps because when a doctor fails to diagnose a condition or diagnoses it incorrectly, the patient could miss out on proper treatment opportunities that could prevent further serious issues or even death. Take, for instance, a cancer diagnosis. If caught early, cancer may sometimes be treatable, however if its treatment is delayed due to a missed diagnosis, the cancer may not be treatable and the patient may suffer the consequences as a result of a doctor’s negligence.

If you have dealt with a case of malpractice or need legal help to decipher whether something may be considered malpractice, contact the skilled professionals at Malman Law today.

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  • Steven Malman was selected to the list. The list is issued by the National Academy of Personal Injury Attorneys. A description of the selection methodology can be found at

  • Steven Malman was selected to the list for 2018-2019.

  • Only the top 100 trial lawyers from each state or highly-populated regions of certain states who are actively practicing in civil plaintiff and/or criminal defense law are eligible for invitation. Invitees must demonstrate superior qualifications, leadership skills, and trial results as a legal professional. The selection process for this elite honor is based on a multi-phase process based upon objective and uniformly applied criteria which includes peer nominations combined with third party research.

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