It’s already difficult enough if we or a loved one are going through a medical issue. Much less, to find out that a doctor could have saved some of that grief had they diagnosed the issue in the first place. Although this can be frustrating, a doctor can only do so much. Sometimes, they don’t have all the information they need in order to make a diagnosis. In this case, they will shy away from officially diagnosing it because a false diagnosis can be just as disastrous as not diagnosed at all. However, when a doctor has plenty to go on and misdiagnosis or failure to diagnose occurs and there are dire consequences, malpractice laws are in place to ensure a patient and their family receive justice.

Proving Malpractice

Although it can be frustrating to pay large sums out to doctors and get no answers only for major issues to arise, it’s not always in the lap of the doctor. However, many times it can be. In order to prove malpractice, a person must do three things.

  1. Prove the doctor’s behavior was at the level of negligence
  2. Prove the patient involved had issues arise from the proven negligence
  3. Prove the doctor had an established relationship with the patient to show they had the necessary information to make a proper diagnosis

Proving Negligence

In order to prove a doctor was negligent, the information they had at the time is taken and compared to another competent doctor would have diagnosed. In other words, if there was an apparent mistake on behalf of the doctor that resulted, or could have resulted, in the patient suffering harm, this is considered negligence. Examples of a mistake along these lines can include, interpreting a test incorrectly, delaying diagnosis or dragging their feet on an important matter, leaving out important medical information on a chart, etc. There are many ways in which a doctor can be negligent however, it has to be legitimate negligence. For example, sometimes misinterpreting a test can happen if it’s a tricky prognosis. However, if any competent doctor would have caught a diagnosis that was missed on a test, this is where negligence can be proved.

Along with proving negligence, the standard of care must be proven as well. This means that it must be proved that the needed diagnosis is something that would have been given under any standard care of the average doctor. Lastly, they must prove that this lack of a diagnosis or misdiagnosis was the root cause of the harm a patient suffered.

To sum it up, yes, a person can allege malpractice on the grounds of failure to diagnose. However, it must be under certain terms and be proven without a doubt.

Are you or someone close to you got injured as a result of a medical procedure? Is the doctor who took care of it wrong? Can you engage his responsibility?

Definition: medical malpractice

The medical liability regime has long been based on jurisprudential principles. The Mercier judgment rendered by the Court of Cassation on May 20, 1936 (Cass civ 20 May 1936, DP 1936, 1, p.88) had recognized the contractual nature of the doctor’s responsibility, based on the demonstration of a fault on his part, of a causal link and of a prejudice suffered by the patient. This decision stated that the obligation of care resulting from the medical contract to be paid by the doctor was an obligation of means.

It was thus recognized that the physician could not commit himself to the cure of his patient but only to give him attentive care, in a conscientious manner and in accordance with the acquired data of the science. Following the increase in litigation and the proliferation of decisions of case law devoting cases of responsibilities by right, without fault, the legislator intervened to frame this regime. Now there are laws that regulate the matter, establishing a principle of legal medical liability.

Note: the fault is the event giving rise to liability. It is a question of any act which led to the damage, emanating from the caregiver.

Except in the case where a defective health product can be implicated, the doctor’s responsibility can only be engaged in the demonstration of a fault. This means that his engagement is an obligation of means, which had already been recognized by the Mercier judgment.

Example: here is the difference between the obligation of means and obligation of result. In the first case, the doctor agrees to do everything possible to treat his patient. In the second case, he would commit himself to heal his patient.

Medical professional insurance

Typology of medical faults

The responsibility of the doctor or the private health facility may be engaged for any fault committed. There are usually two types of mistakes, the doctor being bound by an obligation of science and conscience.

The technical fault

It is about the error made by the doctor by ignorance of the uses and scientific rules that make his profession. It can be a question of a fault: diagnosis; in carrying out the act; in the choice of treatment; medical monitoring.

The fault against humanism

It corresponds to the poor appreciation of the caregiver-patient relationship, in accordance with the ethical rules of the profession.

This is the violation of the obligation to obtain the free and informed consent of the patient. Before any medical intervention, the doctor must obtain the agreement of the patient. This supposes that the latter was enlightened on his health conditions, on the proposed medical procedure, on the therapeutic hazard and the generally accepted and observed consequences for the type of intervention planned.

Good to know: the doctor, therefore, has a duty of fair and clear information.  It is also a violation of medical confidentiality: in addition to the oath of Hippocrates, respect for the privacy of the patient and his right to secrecy is recalled by the Law. Except in the case of legally accepted exceptions, the secret covers all the information concerning the person coming to the knowledge of the doctor, of any member of the staff of these establishments, services or organizations and of any other person in relation, by his or her activities, with these institutions or organizations.

Medical prescription

Medical malpractice: redress and compensation

Anyone who is a damaged or who considers himself or herself to be a damaged of damage attributable to medical malpractice must be informed by the professional, the health establishment, the health services or the body concerned about the circumstances and causes of this damage in the case. In terms of procedure, the fault of the physician or health care institution must be reported as well as the harm and the causal link between the two. There is a multiplicity of possible harms: moral, bodily, etc.

Individual action

There is a first friendly phase in which the damaged lodges an appeal. The court draws up an expert opinion and gives an opinion on the cause and the circumstances of the damage.

When it is found that a fault involves the responsibility of a health professional, a health establishment, a health service, the insurer who guarantees the civil or administrative responsibility of the person considered responsible by the court shall address to the damaged or his successors an offer of compensation for the full compensation of the damage suffered within the limits of the insurance contract guarantee.


If you have suffered a severe injury from a defective medical device, and you are wondering if it makes sense to sue the manufacturer, we may have a few tips for you. As an important decision as it is, you might need some additional information and input from a skilled attorney to answer it.

How to know if you have a valid case?

To have thoroughly answered the best advice is to consult us by phone 480-757-5000

This is where the years of experience and seeking justice for clients before you will come into play. Professionals can always see the standpoint of a case so they can decide if it’s worth pursuing from a legal and financial perspective.

Your lawyer should always make sure that you are within the statute of limitations and that you have sufficient evidence to prove your case and compare your situation to other similar cases to estimate how much compensation you might be able to recover. A reasonable probability lawyer will analyze your situation, and examine your case to other similar cases to determine how much benefit you might be able to recover. Also, a good lawyer should analyze the defendant’s perspective and explore the possibilities of counterclaims.

What do I need to prove to win a products liability case?

This is a product liability lawsuit if you are making a defective medical device case.

To sustain your case you need the following elements:

•    You sustained an injury

•    The product you used was defective

•    The product’s defect caused your injuries

•    You were using the product as specified in the time of the injury

Who might be liable for my injuries from a defective medical device?

In defective product case, you may begin with the manufacturer of the device, but there is a whole chain of commerce liable for your injuries as well including the suppliers, distributors, wholesalers, and retailers that were connected to the development, creation, and sale of the defective product.

What are the potential outcomes of a products liability lawsuit?

A trial can take a lot of time and effort, much of it will be boring, frustrating and time-consuming. Be prepared to see less than appealing aspects of human nature on display during the trial, and after all planning and preparation, and energy wasted, the jury might not rule in your favor, and you will not end up any better than when you began. The odd advice is, you should check out some television, cause sometimes, it can manifest some interesting detail that might have validation in real trials.

With a skilled liability lawyer who can present the case with strong evidence and arguments, you could prevail and feel vindicated for taking the time and effort to make the case to trial.

There’s a lot of elements involved.  We at Schenk and Podolsky won’t take your time into settlements that can be disputed. We work hard and appreciate our clients. Call today for free consultation.

There are so many myths and misconceptions surrounding medical malpractice. Some types of cases are making the news with wrongful publication. For example, enormous payouts, making a medical malpractice lawsuit seem like winning a lottery. The fact is no-one wants to experience the error of negligence in medical care. However, if you have been the victim of medical malpractice, you should know more about this type of lawsuit.

Most medical malpractice Claims are Frivolous

Not true. The myth is that basically suing the doctor and another medical professional was merely a matter of an unhappy patient seeking revenge and attention. But, according to studies, only 3 percent of cases are considered frivolous.

Medical Malpractice Cases Has result in Huge Medical Payouts

Fewer than 1 percent of medical malpractice claims result in award 1$ and higher. Most people only compensate for medical bills. Depending on the case, some may be compensated for ost wages, pain, and suffering, etc.

Medical Malpractice Cases are filled for Money

Many people just want answers in these types of cases. Filling suit will force a medical professional who made a mistake to testify so patient and his/her family can find out what went wrong.

Medical Errors are a Realistic and Expected Risk

Very few individuals would expect to get harm by a doctor. There are complications sometimes. Sometimes the patient can set the chain of events that could lead to injury. In many instances, the error was one that could have been prevented if policies and procedures were being followed.

I’m not able to afford an Expensive Medical Malpractice Claim.

Medical malpractice suits are costly to litigate. These cases often involve thousands of pages of medical records and other documents, testimony by experts and other witnesses, and raise complex technical questions of law and medicine.

In additions, There can generally be interventions from powerful companies with massive resources, including insurance companies. However, these costs should not dissuade families from pursuing the claim. So, families should be aware that they can afford to get the help they need.

Medical Malpractice Claims Cause Health Care Costs to Rise

The new date we gathered is that while health care costs have risen, medical malpractice claims have decreased. Blaming the rising costs of health care and insurance, in general, doesn’t’ hold any truth.

If you have been injured at Mesa area, you can call our office for a free consultation with any question you might have. Don’t believe everything you heard about medical malpractice lawsuits until you speak with professionals. We can determine the facts about the case and the liability of going to court.

Malpractice lawyers will take any case.

It’s not easy to retain the lawyer services. Talking the case, lawyer thinks there is a good chance of winning it, and taking on a situation that doesn’t have a good chance of winning a settlement isn’t a good time investment for a lawyer. It’s always best to consult with professional so call us today +1 480-757-5000!

A list of  the most common Medical Malpractice Claims

With all of today’s advanced technology, negligence and medical malpractice situations unfortunately still occur. Sometimes it’s due to a hospital being overfull, and the staff is overworked, and sometimes it’s because someone just wasn’t paying attention like they should have been. While it’s true that most doctors and nurses do their best providing care to their patients, deadly or life-altering mistakes are still possible, which is why we have medical malpractice claims. Here is a list of a few of the most common medical malpractice claims:

Misdiagnosis or Delayed Diagnosis

These are common claims due to the fact that there are some diseases out there that can be difficult to identify, as well as the fact that some ailments hide behind others. The most prevalent misdiagnosis or delayed diagnosis claims that arise most often are in regard to cancer in adults, and meningitis in children. Furthermore, situations where someone comes to a hospital, and then is discharged, only to have recurrent and even fatal symptoms, are common malpractice claims.

Medication Errors

Another common medical malpractice claim is mistakes made in prescribing or administering prescription drugs. This particular error always turns out to be a major problem. While most of these errors occur in patients over the age of 60, it happens to those in other age groups as well. These mistakes are generally made when a doctor or nurse fails to properly review the patient’s medical history and prescribes a drug that works detrimentally against another prescription the patient is taking, or mistakenly prescribes the wrong drug.

Surgery Errors

Unfortunately, surgery errors are another all-too-common medical malpractice claim always showing up on the reports. While a majority of these particular claims reported are non-life-threatening issues, like accidental nerve damage, and leaving a foreign object, like a medical sponge, inside the body, there are other, much more serious problems. Sometimes these claims are made against surgeons due to an inability to control bleeding, and there are situations where surgeons have operated on the wrong body part or even the wrong patient. These types of errors are always due to very poor or missed communication.