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Though in-clinic abortion procedures are very safe, all medical procedures carry a certain amount of risk. In the case of abortion, the potential for risk increases the longer the pregnancy lasts, especially for women who choose sedation or general anesthesia, both of which come with their own risks no matter what procedure the patient undergoes. One risk in an abortion procedure is suffering an incomplete abortion, meaning that the doctor left tissue behind. This may be the basis of a medical malpractice lawsuit.
What is Medical Malpractice?
When a medical professional fails to perform his or her medical duties competently and causes the patient harm, this constitutes medical malpractice. A botched abortion typically falls under a surgical error medical malpractice claim. These are preventable mistakes made during surgery that go beyond the known risks typically included in the informed consent document patients sign prior to their procedure.
Rules surrounding medical malpractice claims vary from state to state. A medical malpractice lawyer knows the laws in your area and can explain the viability of filing a medical malpractice claim for an incomplete abortion.
What Constitutes a Medical Malpractice Claim?
Patients filing a medical malpractice claim must successfully prove four things:
- The existence of a doctor-patient relationship: You must prove you hired the doctor and that the doctor agreed to be hired. This is simple to prove if the doctor actually treated you. This proof protects doctors from suits brought by people they never treated. For example, if you overheard a doctor giving advice to another person and you acted on that advice, you cannot sue for medical malpractice.
- Doctor negligence: this means a patient may not sue based solely on satisfaction with his or her treatment. You must be able to prove that you suffered harm, meaning that a competent doctor performing under similar circumstances would not have caused you harm. Deciding whether a doctor's care was "reasonably skillful and careful" lies at the heart of most medical malpractice cases. Typically, you must offer expert testimony from a medical professional describing how your doctor's care deviated from the medical standard of care.
- Doctor negligence caused harm: This arises from the fact that many patients receiving care were already sick or injured. The question then becomes, did the doctor's care cause harm, or was it the result of the patient's preexisting condition? The claimant must prove that the doctor's incompetence most likely caused the harm she sustained. Again, this usually requires the expert testimony of a medical professional.
- The injury caused specific damages: Even if you prove negligence or incompetence, and therefore medical malpractice, you must prove you suffered harm. Damages may include additional medical bills, lost work or earnings, mental anguish, and physical pain.
Requirements for an Incomplete Abortion Claim
Understand that these requirements vary by state. Your medical malpractice attorney will understand the requirements in your state.
- Statute of limitations: This indicates how soon after suffering injury the patient must file a medical malpractice claim. The statute of limitations varies by state and typically runs between six and 24 months. The question then becomes: when does the clock begin ticking? This also varies by state. Some states set the zero hour at when the act itself occurred while others set it at whatever point the patient should reasonably have discovered the injury.
- Medical malpractice review panels: In many states, patients must first submit their claim to an expert review panel. This group listens to arguments and reviews evidence, including testimony from expert witnesses, to decide whether medical malpractice occurred. This does not replace the suit or provide damages; you must still file suit. However, you may present the panel's findings in court. If the panel decides no malpractice occurred, the court may dismiss the case.
- Notifying the doctor: Some states require claimants notify the doctor before filing a medical malpractice claim.
- Expert testimony: Most states require expert testimony from a qualified medical professional. However, deciding what qualifications the medical expert must possess varies by state. In the case of an incomplete abortion, this would likely be an experienced abortion provider.
- Damage caps: Many states impose limits on the amount of damages patients may receive in a medical malpractice case.
Schedule a Free Consultation with an Incomplete Abortion Expert Attorney
If you are the victim of an incomplete abortion, schedule a free consultation with an experienced medical malpractice attorney. He or she will advise you on the viability of your case and what damages you can reasonably expect to collect.