When Does Malpractice Occur?

Failure to diagnose or misdiagnose bacterial meningitis can be considered malpractice and is often connected with a claim that the defendant-doctor failed to properly treat the illness. If the doctor did not recognize the bacterial meningitis, then it is likely that the doctor did not treat the patient for the illness. Any injury that resulted from the doctor's failure to provide the appropriate treatment will be considered in determining malpractice and damages.

Once identified, bacterial meningitis is easily treatable with the proper antibiotics. As a result, when a doctor correctly diagnoses a patient with bacterial meningitis, it is rare that the doctor fails to properly treat the illness.

In addition to properly treating the patient, many city and state health codes require doctors to inform those in close contact with the meningitis patient that they might be at risk of contracting the disease. Early antibiotic treatment can prevent a person exposed to the bacteria from contracting the illness. A doctor's failure to inform persons about their risk of exposure could result in the doctor's liability, if an individual were to subsequently contract bacterial meningitis. While an infected person would have to establish a doctor-patient relationship, this relationship might be established through the health codes requiring the doctor to inform those possibly exposed to the bacteria. Such individual would commonly be the family, co-workers, or classmates of the patient.

Compensation for damages a plaintiff can receive in medical malpractice claims for bacterial meningitis varies depending on the type of injury. In cases of death, plaintiffs are often compensated for lost future earnings of the deceased, as well as what is called loss of consortium, which describes the emotional and social loss to deceased's family. In cases of brain damage or permanent disability, such as paralysis and hearing loss, compensation may cover loss of past and future earnings, pain and suffering, and cost of past and future medical expenses.

Plaintiffs involved in medical malpractice litigation must establish certain elements to successfully recover damages from a negligent doctor. In general, a malpractice plaintiff must establish that the doctor-defendant (1) owed the plaintiff a duty of care; (2) that the defendant failed to meet that duty; (3) that the failure to meet the duty more likely than not caused the plaintiff injury; and (4) the injury resulted in damages to the plaintiff, either economic or non-economic.

The plaintiff's first step in a malpractice claim is establishing that a physician-patient relationship existed. A plaintiff accomplishes this by a showing that the doctor undertook to treat the plaintiff, or the plaintiff's decedent in a wrongful death case. Once the doctor undertakes to treat the patient, the doctor owes the patient that degree of care and skill that the average qualified physician possesses. In applying this standard it is permissible to consider the medical resources available to the physician in determining the skill and care required.

Courts hold a physician claiming to be a specialist to the standard of care and skill of the average member of the profession practicing the specialty, taking into account the advances in the profession. And, as in the case of the general practitioner, it is permissible to consider the medical resources available to him.

The plaintiff may sustain his or her burden of proving breach of the defendant's duty through a showing that the defendant-doctor failed to use proper skill in making his or her diagnosis, or performed unauthorized or unnecessary surgery or other treatment, or otherwise improperly treated his plaintiff-patient. In most cases, establishing the defendant's breach of duty, or negligence, requires testimony from another physician, known as an expert witness.

Finally, the plaintiff must show that the error of the defendant-doctor resulted in an injury to the plaintiff-patient. The injury, in turn must have caused some damage to the plaintiff. Damages can represent economic loss, such as lost wages or medical expenses. Damages can also represent non-economic loss, such as pain and suffering.

In many states, statutory law requires that medical malpractice plaintiffs submit their cases to a Medical Review Panel prior to filing the case in a state court. These Medical Review Panels serve different functions in different states. In Massachusetts, a Medical Review Panel finding that malpractice did not occur results in a requirement that plaintiffs post a bond in order to proceed with their claims in court. In Alaska, Medical Review Panels are used to advise the court as to technical issues in a malpractice trial. Judges in Alaska can use their discretion to determine whether a panel is necessary or not. A qualified attorney licensed to practice in a specific state can advise potential plaintiff about a states specific filing prerequisites.

Many malpractice cases involving bacterial meningitis surround a doctor's negligence in failing to properly diagnose the illness, because failure to properly diagnose bacterial meningitis early can have dire consequences, including severe brain damage and death. Additionally, bacterial meningitis most often strikes young children, who are perhaps unable to effectively communicate the symptoms from which they suffer, making diagnosis that much harder. Establishing that a failure to diagnose bacterial meningitis was the result of a doctor's negligence is highly fact sensitive. In order to convince a jury that a doctor's misdiagnosis amounts to negligence often requires expert testimony to the effect that the average doctor in the community would have made the proper diagnosis in the case.

Medical malpractice cases are highly fact sensitive. The substance of each claim varies based on the circumstances surrounding the alleged malpractice. Success in a malpractice claim depends largely on the plaintiff's ability to convince a jury that a doctor failed to act properly in diagnosing or treating the patient, particularly through the use of a medical expert.

If you believe that you or a family member have suffered injury or you believe a family member has dies as the result of a physician's failure to properly diagnose or treat bacterial meningitis, contact a qualified attorney to determine whether you might have a viable medical malpractice claim.