November 28, 2015
If you were treated by a medical professional or organization who used equipment that did not deliver the promised results — or worse, aggravated your condition or suffering — you may be able to file a claim for reasonable compensation. However, one key question helps to define whether the case is one of fraud or one of medical malpractice: did a medical professional or organization claim that a medical device would treat a condition or perform in ways it cannot, or did they incompetently prescribe or sell a defective device?
Differentiating Between Malpractice and Fraud
Ultimately, it comes down to the intention of the medical professional or organization in question. If they knowingly misled a patient into believing a device could treat a certain condition or perform according to specifications that they knew it could not meet, that is likely a case of fraud. This would be the case if they knew a product was:
-Defective
-Unused, not useful or superfluous
-Cheaper than they stated it to be or available for a cheaper price
-Likely to result in a kickback for them from a manufacturer or retailer of the product
-Going to be added more than once to a medical bill
A Case of Medical Malpractice
On the other hand, if a professional or organization sells or prescribes a device incompetently, without the intention of misleading a patient, that may be grounds for a medical malpractice suit. This could be the result of poor training, recklessness, inadequate knowledge or negligence on the part of that person or entity. This can include failing to warn a patient of known risks of treatment using such a device.
In the case of malpractice, there are several important limitations, all of which must hold true:
A doctor-patient relationship must exist. You must show that you or your loved one hired the doctor or went to the caregiving organization in question seeking treatment and that they or it agreed to treat you or your loved one.
The doctor or medical organization was negligent. Unfortunately, the burden is on you to show that the doctor or organization did not provide the accepted standard of care that they are required to in treating a patient. This almost always requires the testimony of a medical expert.
The doctor or medical organization’s negligence caused the injury or suffering. This can be hard to prove in cases where a patient is already sick or injured. You must show that “more likely than not” this negligence worsened the condition, pain and/or suffering that occurred. Again, the testimony of a medical expert is likely necessary for this.
Suffering, pain or harm occurred. This can take the form of mental anguish, physical pain, lost work or earning capacity and/or additional medical bills.
There is also a limited time frame for medical malpractice claims. If you are considering filing a medical malpractice suit, you need to do so within four years of the time when the treatment was provided.
Call Khonsari Law Group for Fraud or Medical Malpractice Claims
If you believe you have a case of fraud or medical malpractice resulting from the sale of faulty medical equipment, you should call Khonsari Law Group without delay, at (727) 269-5300 to discuss your case. The initial consultation is free, and we are happy to provide you with the best options for your case. You can also contact us online.