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Establishing duty of care essential to malpractice lawsuits

When New Mexico patients who have been harmed in a health care setting want to sue for malpractice, they must first prove that the facility or provider owed them a duty of care. A patient's medical records typically provide this information by showing that the person engaged a treatment facility for care. Other pertinent details like symptoms, a diagnosis and treatments could appear on the records and show who made decisions and who performed services.

These records act as evidence that a relationship existed between the patient and a service provider. Establishment of this relationship activates the duty of care as long as the interaction was voluntary and both parties agreed to participate. All licensed medical providers, including physicians, nurses, therapists and assistants, have a legal duty of care to the patient. When determining the potential presence of malpractice, the quality of the care will be the next consideration.

The care that is provided must meet the standard of what an average practitioner in that situation would have given a patient. Experts decide this average standard by considering what knowledge and skills are available to comparable service providers and what tests and treatments are typically undertaken under similar circumstances.

The patient must be able to show that the health care facility or practitioner failed to live up to the required standard. An attorney who has experience in medical malpractice litigation can attempt to demonstrate this on behalf of the injured client through a review of the patient's medical records and by obtaining the opinions of medical experts. Damages typically sought in a medical malpractice claim can include the costs of additional medical care and treatment and, if applicable, wages lost during the recovery period.

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