Medical Malpractice
Legal advice in medical malpractice cases
Medical Malpractice
What is medical malpractice?
Advances in technology and medical science have produced highly effective new diagnostic tools and improved treatments intended to help the patient. The doctor has become accountable in their relationship with patients; they must ensure that their decisions are grounded in the best available outcome for the patient they are treating.
Medical malpractice is therefore established where a patient has suffered harm - physical, mental, emotional or material - that they would not have suffered had the medical care provided not been negligent. The harm arises precisely as a consequence of a negligent or inappropriate act.
Negligence may involve a wrong diagnosis, inappropriate treatment or care, a failure to detect a condition, or a failure to intervene.
Examples of medical malpractice
The most frequent medical errors for which legal liability can arise.
- An inadequate diagnosis, or a failure to provide a correct diagnosis
- Misreading or disregarding laboratory results
- Performing an operation that is not necessary
- Errors of surgical technique
- Administering inappropriate medication, whether in type of treatment or dosage
- Inappropriate treatment
- Premature discharge
- Overlooking the patient's medical history
- Failure to order the necessary tests
- Failure to recognise symptoms
- Failure to refer the patient to a higher level of care
For the doctor to be held legally liable for these kinds of error, the defective medical act must have caused the patient harm - specifically, an injury to their physical or mental health or bodily integrity. In practice, the most frequent negligent medical errors are committed during post-operative monitoring.
The patient and their rights
A patient is any person, well or unwell, who uses health services, under Law no. 46 of 2003 on patients' rights. The following rights are guaranteed by law:
The right to receive medical care
The right to confidentiality of information and to privacy
The right of access to personal medical records
The right to a second medical opinion
The right to decide not to be informed
The right to refuse a treatment or surgical procedure
The right to be treated by an accredited doctor
The right to be respected as a human being
The right to end-of-life care allowing the person to die with dignity
Failure to observe patients' rights can give rise to civil liability for medical malpractice in the following situations: breach of confidentiality, failure to inform in advance, a doctor exceeding their competence in providing care, unauthorised practice, failure to release the patient's records, discrimination against patients, abandonment of the patient, or refusal to provide medical assistance.
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Legal liability
Who can be held liable?
Patients are advised to ask the healthcare provider where they were treated for the medical records relating to their state of health and to the procedures carried out, so that these can subsequently be reviewed by a specialist. The request is made using the form "Request for release of personal medical records", set out in annex no. 3 to the implementing rules of Law 46/2003, and registered with the healthcare provider (hospital or private clinic). We recommend completing the form in two copies, one for the provider and one for the patient - the patient's copy should be stamped as registered and kept as proof that the request was made.
In addition to medical staff (doctors or nurses), the following may also be held liable:
Healthcare providers
Either alongside their medical staff as employer, or in their own right.
Manufacturers of equipment and medicines
For defects that cause harm to a patient.
Suppliers of services to the medical facility
Where the services supplied cause the patient harm.
The professional indemnity insurer
Of the practitioner and of the healthcare provider.
Which exceptions do not amount to negligence?
There are exceptions in which medical staff cannot be held liable even though the patient suffered harm.
Where there is an emergency in which the doctor acts in good faith, within the limits of their competence.
In an emergency where doctors with the necessary competence are not available.
Where the harm arises from inadequate equipment, unforeseen complications, or infections that could not have been prevented.
Where the diagnosis is mistaken because of the limitations of the medical technology available at the time.
For the patient's civil claim to succeed, the following must be proved
A breach of the standard of care
Certain medical practices are recognised in law as appropriate and are universally accepted by professionals in the medical field. Negligence arises where that standard is breached.
Injury resulting from negligence
A breach of the standard alone is not enough. The patient must show that the injury followed from the negligence, since an unfavourable outcome is not necessarily bad practice.
Serious harm
The negligence caused serious medical injury. The harm must be significant enough to justify bringing proceedings.
Types of legal advice in medical malpractice
Legal assistance for victims
We draft claims and criminal complaints on behalf of victims against the doctors or hospitals responsible, and we advise and represent victims of medical malpractice in civil and criminal proceedings, with a view to obtaining fair compensation.
Legal assistance for doctors
We provide legal assistance in civil and criminal proceedings to doctors and dentists accused of errors in the exercise of their profession. We also provide preventive legal advice to protect them from potential malpractice disputes.
Legal assistance for private healthcare providers
We provide hospitals and private clinics with ongoing preventive legal advice, both for the protection of the legal entity and for its contracted or employed medical staff, as well as representation in proceedings brought by patients.
Frequently asked questions
What is medical malpractice?
Medical malpractice arises where a patient has suffered physical, mental, emotional or material harm that they would not have suffered had the medical care provided not been negligent.
Who can be held liable for medical malpractice?
In addition to doctors and nurses, liability may fall on healthcare providers as employer or in their own right, on manufacturers of equipment and medicines, on suppliers of services to the medical facility, and on the professional indemnity insurer.
What must be proved for a civil claim to succeed?
Three elements must be established: a breach of the standard of medical care, an injury resulting from that negligence, and the serious nature of the harm caused.
What is the limitation period for a medical malpractice claim?
The general limitation period for a civil claim is three years, running from the date on which the patient knew or ought to have known of the damage and of the person responsible for it. We recommend consulting a lawyer as early as possible, since the starting point is assessed case by case.
How much does an initial consultation cost?
The first consultation is free. In it we review the available medical records and tell you plainly whether the case has a realistic prospect of success.
First step
Free consultation
We know how much trust and reassurance matter, particularly with this kind of case. We offer a free consultation in which we can answer your questions and address your concerns. Get in touch to find out whether we are the right fit for your situation.