美国医疗诉讼的相关知识

Medical Malpractice: What is it?
What is "Medical Malpractice"? Many think the term "malpractice" applies only to medical doctors, yet there are other health care providers, such as chiropractors, therapists, nurses, psychologists, and dentists who may also be sued for medical malpractice under Ohio law. There are three elements that must be met in a malpractice, or negligence, lawsuit.
How can I determine if I might have a valid Medical Malpractice case?
A. Duty Toward the Patient: The first element in any medical malpractice lawsuit is that of a duty owed to the patient. If there is no legal duty to act, a medical professional can stand by, doing nothing, while a person suffers, and still not be negligent. Thus, the first question to address in a medical malpractice lawsuit is whether the medical professional owed any duty to the plaintiff.
Often this question is easily answered. When a patient goes to a doctor with a problem and the doctor agrees to treat the patient, the doctor has assumed a duty to treat the patient with that degree of skill, care, and diligence possessed or exercised by competent and careful physicians. By agreeing to diagnose or treat a patient, the doctor has indicated that he or she has the appropriate training and skill to adequately care for the patient and has assumed a duty to use that skill and training to treat the patient.
Historically, in the American system of jurisprudence, a person had no affirmative duty to help others, absent some special relationship between the two parties. A doctor dining out at a restaurant had no general duty to help someone experiencing a heart attack. The doctor could continue his or her meal and do nothing to help the heart attack victim because the law imposed no duty to act in this circumstance. Despite the apparent callousness of this rule, it remains the law in most states including Ohio.
However, once a physician voluntarily assists someone, he or she becomes liable under this law for any injury that results from the failure to act as a reasonably prudent physician would have acted under the same or similar circumstances. Thus, if a doctor at a restaurant rushes to help the victim of a heart attack, the law imposes a duty to adhere to professional standards of care in diagnosis and treatment of this person who has now become his patient.
An area of medical malpractice law receiving increased attention in the courts deals with the circumstances under which a doctor owes a duty to persons other than the patient. In some situations, the doctor may owe a duty to persons other than his or her patient. For example, a pedestrian injured when an automobile driver suffers an epileptic seizure while driving might charge that the driver’s doctor violated a duty to the general public by failing to properly diagnose the driver’s epileptic condition. The victim of a domestic assault might charge that the perpetrator’s psychiatrist had a duty to warn the victim of the patient’s unstable condition.

B. ACCEPTED STANDARDS OF PRACTICE. Medical malpractice results if the doctor injures his or her patient by using skill or rendering care that is less than that which could be expected from a reasonably competent doctor in diagnosing or treating the same condition.
In most cases, a plaintiff must present expert testimony on what the standard of care is and the manner in which the defendant departed from that standard. Medical malpractice lawsuits often become battles in which each side has expert witnesses declaring different acceptable medical standards. Therefore, it is imperative that a lawyer for a person bringing a malpractice case state the case in clear, understandable terms so that any juror can comprehend what the doctor did wrong.
C. Causation: The third requirement to succeed in a medical malpractice lawsuit is causation. Causation is frequently divided into two separate inquiries—whether the professional’s actions in fact caused the harm to the patient, and whether the professional’s actions were the proximate cause of the patient’s harm.
The "cause in fact" inquiry is usually answered with a "but for" test. A doctor’s action caused the patient’s harm if, but for that action, the patient would not have been harmed. The proximate cause inquiry asks whether, if the action did in fact cause the harm, the professional ought to be held responsible for his or her actions. In some rare instances, the physician’s actions are so removed from the final harm to the patient that the law cuts off liability for those actions by saying that the tortious conduct was not proximate to the harm. In other words, there is not a close enough connection between the action and the harm to say there is proximate causation.
Sometimes this causation inquiry is answered rather easily—such as when a doctor gives a patient the wrong drug and that drug causes permanent injury. Thorny issues arise when the harm to the patient had more than one cause. For example, two doctors, acting independently, might both prescribe the same wrong medication. If the "but for" analysis is applied to each doctor’s actions in isolation, it cannot be said that his or her actions were the cause of harm to the patient because the patient would have been harmed through the negligence of the other doctor. Different jurisdictions have created their own rules to deal with "multiple cause" injuries. The Ohio Legislature has recently enacted laws which impact this issue in medical malpractice cases.