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Medical Malpractice


The Medical Malpractice lawyers at the Schmidt-Salita Law Team want to provide you with basic information about medical malpractice claims in Minnesota in order to help their clients understand the law.

The Basis of Any Medical Malpractice Claim is Proof of Medical Negligence.

The basic element of any Medical Malpractice claim is that of proving negligence on the part of the medical provider.

Failure to Use Reasonable Care.

Generally, negligence is a failure to use reasonable care under the circumstances.  That failure can either be (1) a “commission,” namely the act of doing that which a reasonable person would do or (2) a “omission,” namely the failure to act and do what a reasonable person would do.

Deviation from the Standard of Care.

However, Medical Malpractice cases are different from other types of negligence cases. In Medical Malpractice cases, reasonable care by a medical doctor, dentist, nurse, hospital or other healthcare provider is care that meets an accepted standard of care that any doctor, dentist, nurse, hospital or other healthcare provider who is in a similar practice in a similar community would use or follow under similar circumstances.  The failure to provide that care that meets an accepted standard of care under the circumstances is negligence.

Evidence of Causation is Necessary.

Causation is always an important requirement of any Medical Malpractice case.  “Causation” is the connection between the negligent act and the injury or damage.  In other words, it is an essential part of any Medical Malpractice case to prove that the negligent act, the malpractice, actually caused the injury or damage. Causation is often a difficult part of the proof of a medical malpractice case being there is often an underlying medical condition that was already present and the reason for the medical treatment in the first place.

Evidence of Bad Result or “Loss of a Chance.”

Injury or damage is another important part of any Medical Malpractice case. It is not enough to prove simply that there was a bad or unexpected result.  The party seeking damages from the medical provider in a Medical Malpractice case must prove that the actual act of negligence was the direct cause of the injury or harm to that party.  That proof may be in the form of evidence that the negligent act of the health provider resulted in a loss of chance or opportunity for a better result or outcome.  A medical provider is not negligent simply because his or her efforts were unsuccessful and there was a bad or unexpected result.

Malpractice Due to Error in Diagnosis.

The failure to properly diagnose a medical condition on the part of any doctor or other healthcare provider also constitutes negligence. Accordingly, where the failure to diagnose the medical problem results in the patient not receiving proper treatment or the patient receiving improper treatment, the patient has a valid claim for Medical Malpractice.

Departure from Manufacturer’s Recommendations.

The failure to follow the recommendations or instructions of the manufacturer for the use of any medical device or pharmaceutical of any doctor or medical provider constitutes the negligence unless there is evidence that a reasonable health care provider would not have followed those recommendations are instructions under same or similar circumstances. Where drug manufacturer issues clear and explicit recommendations or instructions to the health care provider as to the conditions under which a drug should be prescribed or medical device should be used, the failure of the doctor to follow those recommendations or instructions is malpractice. The healthcare providers’ deviation from such instructions for recommendations is considered to be prima facie evidence of negligence where there is also evidence that the deviation constituted injury or damage to the patient.

The Doctor’s Duty to Refer.

Any doctor or healthcare provider has a duty to refer a patient to a specialist if and when that doctor knows, or should have known, that the patient’s condition is beyond the specialty of that doctor and beyond his or her ability and skill to properly treat that condition.  Accordingly, the failure to refer a patient needing medical skills beyond the ability of that doctor of health care provider is considered negligence.

It is the law that any doctor or other healthcare provider that does not have the skill and ability to properly care for a condition and fails to refer the patient to a doctor in the proper field of specialty will be held responsible to the same standard of care that a specialist in that field would have employed or used under similar circumstances.

Medical Treatment without Patient’s Knowledge or Consent.

No doctor or other health care provider has any right to perform any operation or other medical procedure without first obtaining the consent of the patient or someone other than the patient who is authorized to give consent on behalf of the patient.

No consent is needed where there is an emergency that requires an immediate medical treatment or operation and consent is impossible or impractical because the delay would endanger the patient’s health or life.

The Patient’s Informed Consent is Necessary.

Minnesota’s Patient’s Bill of Rights sets out a statutory duty under the law to disclose information to the patient about treatment. The statute requires that the patient shall be given complete and current information concerning the diagnosis, treatment, alternatives, risk, and prognosis as required by the physicians duty to disclose.

The failure of the doctor or healthcare provider to inform a patient of the risks of treatment, or the availability of alternative medical treatment is necessary when and if the provider knows or should know about the risks involved in the surgery, treatment or the alternatives to surgery and treatment can constitute medical negligence or malpractice.

If the circumstances are such that a reasonable person in the patient’s physician would not typically have consented to the treatment if the risks and alternative treatments had been known by the patient, a valid case for Medical Malpractice could be established on this basis.

The Duty of Any Hospital.

Hospital Malpractice- hospitals also have a duty to use reasonable care for the protection and well-being of their patients and failure to meet this duty can give rise to a medical malpractice claim against the hospital.

Hospitals also have a duty of protection to the patient from injury caused by others-and even self-injury.  The Schmidt-Salita Law Team has successfully handled several cases against hospitals for injury caused by other patients, as well as hospital staff personnel.

Ordinarily, a hospital is not responsible for harm caused by hospital personnel in following the orders of a patient’s doctor. However, where hospital personnel should have known that it was unreasonable for hospital personnel to follow the orders of a doctor and harm follows to the patient, a valid claim of medical malpractice can arise even where the procedure was ordered by a doctor.

The Duty of Nursing Homes.

Nursing home negligence involves the failure of any nursing home to provide proper nursing care.  This failure will certainly give rise to a claim of Medical Malpractice against the nursing home.  Malpractice claims against nursing homes can be based on the failure to provide proper nursing care and failure to provide patients with proper medical care.  However, most nursing home cases are cases of neglect abuse.

Nursing home claims can take a number of forms and allege a number of different types of abuse, neglect, exploitation, or violation of rights. Some of the types of claims we handle for nursing home residents or their families include:

-Neglect of medical problems;

-Prescription medication errors;


-Failure to provide proper medical care;

-Psychological and Emotional Abuse;

-Physical restraint errors;


-Falling/Dropping Patients.

Nursing home malpractice cases also require an expert witness to testify that the nursing home has deviated from the standard practice in same or similar circumstances.


The Schmidt Salita Team Provides High Quality, 5 Star Rated, Legal Services for Medical Malpractice Claims.