Medical malpractice cases are notoriously difficult to prove. If you have been a victim of medical malpractice, it is natural for the process to be extremely emotional. However, some claims of malpractice simply do not hold up in court. In order for a medical malpractice case to make it into court, the plaintiff must establish certain parameters.
One of these parameters is duty of care. According to Findlaw, in order for a medical malpractice case to be actionable, the physician must owe the patient duty of care.
What is a duty of care?
Essentially, there must be an active agreement between the physician and the patient to enter into the doctor patient relationship. For example, if somebody is suffering a stroke on an airplane and there is a doctor on the plane, the doctor must identify him or herself and begin treatment. This establishes a duty of care. On the other hand, if the doctor does nothing, there is no duty of care and the person suffering from the stroke would have no malpractice case against the doctor.
Additionally, even if the doctor agrees to try and treat the patient on the plane, if the patient dies this does not automatically constitute malpractice. The doctor must only provide the patient as much skill, diligence, and care as a court can reasonably expect.
What is vicarious liability?
In certain circumstances, you may also be able to sue the doctors employer for malpractice in addition to the doctor him or herself. There is a legal provision, “respondeat superior,” or “let the master answer.” Under this, occasionally an employer may be liable for the actions of an employee.