Medical malpractice cases are egregious in nature, but they are also very difficult to make actionable. An actionable case is one that has all of the pieces necessary to sue for damages.
One of the most vital components to prove in a malpractice case is duty of care. According to Findlaw, duty of care applies when a physician openly agrees to treat a patient.
What is not “duty of care”?
A doctor has to openly agree to treat a patient before he or she takes on the duty of care. For example, if a person on a plane is having a stroke or heart attack and there is a doctor on the plane, the doctor is not obligated to assist. In this example, if the doctor stays in his or her seat, there is no ground for malpractice if the person having a heart attack dies, because the doctor did not assume duty of care.
However, if the doctor comes forward and identifies him or herself as a doctor and tries to treat the patient, then the doctor has assumed duty of care for the person having a heart attack.
What if the person dies?
If the person on the plane is having a heart attack and dies, this does not automatically make a malpractice lawsuit. There must be an element of negligence. So if the doctor, after having assumed duty of care, takes an action that directly results in the death of the person, he or she may be guilty of neglect.
But if a person having a heart attack merely dies and the doctor is unable to prevent this despite doing everything within his or her reasonable ability, this is not malpractice.
What is duty of care?
