Medical Malpractice: Defining the Most Common Legal Terms

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We know medical malpractice terminology is not always easy to understand. To help you navigate the complexities of legal jargon, we’ve compiled a glossary with all the terms we think will help you understand the process of your lawsuit.

We’re here to help you every step of the way, even if that’s just knowing the vernacular. If you’d like to know more about medical malpractice, don’t hesitate to contact us.

A B C D E F G H I J L M N O P S T V W #

A –

Adjudicate: To decide a legal case.

Affidavit: A voluntary statement or declaration of facts that has been written down and confirmed under oath.

Allegation: A statement made in a pleading by one of the parties to the action which tells what that party intends to prove.

Answer: Written response in which the defendant admits or denies the allegations contained in the complaint.

Apgar Score: When a child is born, a physician will take note of his or her activity – muscle tone, pulse, grimace, reflex irritability, appearance, skin color, and respiration. These observations are made once immediately following birth, again at one minute of life and again at five minutes of life. A score of zero to ten is then calculated. A low score alerts a doctor that resuscitation may be necessary and a high score reassures a doctor that the baby is healthy.

Arbitration: A process for deciding a legal dispute without having to go to court.

Assumption of Risk: A defendant’s allegation that the injured plaintiff recognized the danger of the plaintiff’s course of action but, nonetheless, willingly chose to risk such danger.

Athetosis: Involuntary movements – uncontrolled/unwanted movements.

B –

Birth Injury: A physical injury suffered by a baby during delivery. Birth injuries may be related to pre-existing maternal or fetal health problems, or related to negligence by a health care professional such as a doctor or another member of the professional medical staff. These injuries may cause permanent disabilities or even death.

Brain Damage: During pregnancy or birth, brain damage to a child may cause cerebral palsy. The following problems may result in brain damage: Rh incompatibility, a lack of oxygen to the baby, a mother’s urinary tract infection, bleeding within the infant’s brain, or poisoning due to the mother’s use of alcohol and drugs.

C –

Cancer: A disease manifested by the presence of a malignant tumor. This tumor must be characterized by the uncontrolled growth and spread of malignant cells, the invasion of tissue, or leukemia.

Cancer Misdiagnosis: Caused by medical negligence when a medical specialist fails to follow the acceptable standard of care required of his/her medical specialty. Cancer misdiagnosis related to medical negligence can occur when a medical professional fails to do any of the following: pay attention or respond to a patient’s complaints or symptoms, order the proper tests that would lead to correct diagnosis, refer a patient to a specialist in a timely manner, or treat a patient in the appropriate manner given their medical condition.

Case Law: Law based on previous decisions of appellate courts.

Cerebral Palsy: A medical condition caused by a permanent brain injury that occurs before, during, or shortly after birth. The effect of cerebral palsy is characterized by lack of muscle control and body movement. The cerebral palsy diagnosis is usually made shortly after birth, but may show up later in childhood.

Central Nervous System: The brain and the spinal cord. Receives sensory impulses from the rest of the nervous system and then controls the body’s response to those impulses.

Civil Lawsuit: Civil: Generally a lawsuit pertaining to disputes, not involving crimes, including family matters, contracts, medical malpractice, collection of debts, and compensation for personal injury or property loss.

Cognitive Function: The skills of the brain including memory, attention, and concentration.

Collateral Source Rule: Under this rule, compensation awarded to an injured party shall not be reduced by the jury by the amount of compensation available to him from his insurance company or other independent sources.  If there have been payments made by an insurance company or other source for the injuries suffered, the judge will reduce the verdict accordingly.

Common law: Law that derives its authority solely from usages and customs of the past.

Comparative Negligence: The doctrine of comparing degrees of fault among the responsible parties.

Compensation: Monetary award transferred from defendant to plaintiff to make up for some wrong, damage or injury caused by the defendant’s actions or inaction.

Complainant: Also known as the plaintiff.

Civil Complaint: The first pleading in a civil case filed by the plaintiff. It alleges the material facts and legal theories to support the plaintiff’s claim against the defendant.

Contingency Fee: A fee arrangement in which the plaintiff and his or her attorney agree that the fees due to the attorney will be determined by the amount of the judgment granted if in the favor of the plaintiff.

Continuance: A delay of a scheduled session of a court.

Cross-Examination: The questioning of a witness of one party by the opposing party during a trial, hearing or deposition.

CT Scan: A “computed tomography” scan may be used to determine the cause of cerebral palsy in a child. This test scans the brain, looking for abnormalities and areas that have not properly developed.

D –

Damages: Monetary compensation claimed by a person who has suffered a loss or injury to his person, property or rights as a result of the negligence or unlawful conduct of another.

Decedent: A person who has passed away.  In a medical malpractice case, it is the person who has died due to the negligence of a medical provider.

Decree: An order of the court. A final decree is one that fully disposes of the litigation.

Default: Failure of either party to file required documents or appear in a civil case within a certain period of time.

Defendant: The person or party sued in a civil case or accused in a criminal case.

Deposition: The sworn testimony of a witness, taken out of court and usually prior to trial.

Direct Examination: Questioning of a witness by the party who calls the witness.

Directed Verdict: A judgment entered by the judge without allowing the jury to participate.

Disciplinary Hearing: A hearing or professional review conducted by any state or federal administrative agency, licensing or regulatory authority responsible for regulating professional conduct.

Discovery: The pre-trial process in which each party discovers the evidence that will be relied upon at trial by the opposing party.

Dismemberment: Loss of sight means total loss of sight which cannot be restored by surgical or other means; loss of hand means that a hand is permanently severed at or above the wrist; and loss of foot means that a foot is permanently severed at or above the ankle.

Dismissal with Prejudice: An order to dismiss a case in which the court bars the plaintiff from suing again on the same cause of action.

Dismissal without Prejudice: An order to dismiss a case in which the court preserves the plaintiff’s right to sue again on the same cause of action.

Dysarthria: A speech disorder that often affects people with cerebral palsy, caused by a weakness in the muscles that produce speech. In mild cases, there may only be a slight slurring of speech; in more severe cases, the person may depend upon a voice output system to speak.

Dystonia: Involuntary slow, sustained muscle contractions resulting in abnormal postures and twisting motions of arms, legs, and trunk.

E –

Eligible Survivor: In a medical malpractice lawsuit, this term can include living spouse and  children under the age of 25 years of age.

Evidence: A fact presented in court through the testimony of a witness, an object or written documents.

Exhibit: A document or object that is offered into evidence during a trial or hearing.

F –

Failure to Diagnose: A form of medical malpractice committed on behalf of a medical doctor. Failure to diagnose has the potential to cause serious damage and even death to patients who do not receive prompt and adequate medical care as needed because of medical malpractice.

Fraud: Intentional deception resulting in damage to another, whether to his or her person, rights, property or reputation. Fraud usually consists of a misrepresentation, concealment or non-disclosure of a material fact. Can also be misleading conduct, devices or contrivance.

G –

Gait: How an individual walks. Normal gait requires the proper functioning of the nervous system and the musculoskeletal system.

Greater weight of the evidence: the more persuasive and convincing force and effect of the entire evidence in the case.

H –

Heart attack: Occurs when the flow of blood to the heart is blocked. The blockage is most often a buildup of fat, cholesterol and other substances, which form a plaque in the arteries that feed the heart (coronary arteries).

I –

Incompetence: The inability or lack of legal qualification or fitness to discharge the required duty.

Illness Period: For insurance purposes, this normally begins when covered expenses are incurred.

Intention Tremors: As a person with ataxic cerebral palsy reaches for an object or attempts to perform an act (such as putting on a shoe), the body part that he or she is moving may begin to tremble. Intention tremors become stronger as the person reaches the object.

Involuntary Movement: Movement that is not under the control of the brain. The movement is caused by electrical stimulation of the muscle, and in individuals with cerebral palsy, the involuntary movement happens so often that it interferes with their ability to function.

Indemnity: An agreement wherein one party financially protects another against an anticipated loss.

Interrogatories: A form of discovery in which one party submits a series of written questions to the other party, and to which the latter is bound to answer under oath.

J –

Judgment: The official decision by a court, or certification by the court of a jury’s verdict.  The more formal definition is the determination or sentence of the law, pronounced by a competent judge or court, as the result of an action or proceeding instituted in such court, affirming that, upon the matters submitted for its decision, a legal duty or liability does or does not exist.

Judgment notwithstanding the Verdict: A judgment entered by order of the court for one party, although there has been a jury verdict for the other party.

L –

Leukemia: A type of cancer that forms in the bone marrow, causing abnormal white blood cell development. Leukemia can be caused by exposure to certain carcinogenic substances.

Liability: A legal responsibility or obligation.

Liability Risk: Liability loss or exposure where negligent acts may occur for which an organization may be held responsible. The act must be injury to or property damage of others. Insurance coverage for this type of risk is called, “third party insurance.”

Lien: An encumbrance, upon real or personal property, that secures the payment of a debt or the performance of a duty.

Litigant: One of the parties involved in a legal action.

Litigation: The process of settling a dispute through the court system.

Locum Tenens: A healthcare provider who is serving as a temporary relief or substitute.

Lymphoma: A type of cancer that forms in the lymph nodes. Lymphoma can be caused by exposure to certain carcinogenic substances.

M –

Medical Incident: Any act, error or omission during the providing of professional services.

Medical Lien: The right of a hospital, doctor or health insurance company to assert an interest in a personal injury recover to the extent of the cost of the treatment or service provided.

Medical Malpractice: Improper or negligent medical treatment of a person under a medical professional’s care, which results in injury or death.

Medical Negligence: An act or omission (failure to act) by a medical professional that deviates from the accepted medical standard of care. Those standards are based on what a reasonable person with the requisite knowledge and skills would or would not do under the same or similar circumstances.

Misdiagnosis: A medical professional’s failure to properly identify and diagnose a patient’s medical condition. A doctor can be held liable for any damages that result from a misdiagnosis if the medical mistake was a result of negligence.

Mistrial: An erroneous invalid trial that cannot stand in law.

N –

Negligence: Failure to exercise that degree of care that a reasonable person would exercise under the same circumstances. When that failure causes another person to suffer an injury or financial loss, that person may be entitled to just compensation through our civil justice system.

Negligence action: a civil action for damages based upon a theory of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories. The substance of an action, not conclusory terms used by a party, determines whether an action is a negligence action.

Nursing Malpractice: An intentional act or negligence committed by a member of the nursing profession that causes physical, financial, cognitive, emotional or psychosocial damage to a patient under their care.

Nursing Home Malpractice: Any intentional act or negligence committed by a nursing home professional which causes injury to a resident.

O –

Occupational Therapy: Therapy designed to enable the individual to work with their arms and hands.

P –

Prescription Error: A form of medical malpractice that occurs when a patient does not receive the appropriate medication, at the right dose, at the right time. A Florida prescription error can often cause harm to a patient, and in some circumstances, can even lead to death. A Florida prescription error is considered medical malpractice when a medical professional’s negligence or mistake led to patient harm.

Physical Dependence: A physiological need for a substance, the absence of which leads to withdrawal. Physical dependence is distinguishable from addiction in that addiction also involves mental fixation.

Physical Therapy: Therapy designed to improve mobility and keep muscles stretched.

Plaintiff: The party who initiates a legal action; in a personal injury lawsuit, the person who alleges that he or she has suffered injury and damage due the negligence of another party.

Pleadings: Written documents stating the allegations and claims of the opposing parties in a legal dispute.

Preponderance of Evidence: The relative weight, credit and value of the evidence presented by adversaries in a trial. In a civil trial, the jury is charged with reaching a verdict based on this standard, as opposed to the “reasonable doubt” standard in a criminal trial.

Professional Services: Services for which a person is licensed, trained and qualified to perform in the capacity of a healthcare provider.

R –

Radiologist: Medical doctors that specialize in diagnosing and treating injuries and diseases using medical imaging (radiology) procedures (exams/tests) such as X-rays, computed tomography (CT), magnetic resonance imaging (MRI), nuclear medicine, positron emission tomography.

Rebuttal: Evidence that attempts to explain, counteract or disprove facts given in evidence by the other party.

Re-direct Examination: Opportunity to present rebuttal evidence after one’s evidence has been subject to cross-examination.

Retainer: Advance payment of fees, or fees and costs, made by a client to an attorney when the client retains the attorney to act for him or her.

S –

Seizures: A person having a seizure may abruptly “freeze,” fall and shake violently or simply fall down. Seizures affect about half of all people with cerebral palsy but are usually not harmful.

Spastic Cerebral Palsy: A form of cerebral palsy that causes tightness in the muscles. Because of this tightness, spastic cerebral palsy patients have a difficult time controlling their movement.

Speech Therapy: Therapy used to increase communication skills. It may also include teaching sign language or using a communication device.

Standard of care: The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

Stipulation: An agreement, admission or concession made in a judicial proceeding by the parties or their attorneys, thus relieving a party of its obligation to produce evidence in support of an argument or allegation.

Stroke: a medical condition in which poor blood flow to the brain results in cell death. There are two main types of stroke: ischemic, due to lack of blood flow, and hemorrhagic, due to bleeding.

Subpoena: A legal document issued by the court ordering a person to appear as specified and give testimony and/or produce evidence.

Subrogation: A process by which a third party is put in the place of a creditor so that the rights and securities of the creditor pass to that third person.

T –

Tort: a civil wrong or wrongful act, whether intentional or accidental, from which injury occurs to another.

Transcript: The official verbatim record of court proceedings.

Trial: A formal presentation of facts to a court or jury in order to reach a legal resolution.

V –

Volvulus: When a loop of intestine twists around itself and the mesentery that supports it, resulting in a bowel obstruction. Symptoms include abdominal pain, abdominal bloating, vomiting, constipation, and bloody stool. Onset of symptoms may be rapid or more gradual. The mesentery may become so tightly twisted that blood flow to part of the intestine is cut off, resulting in ischemic bowel.

W –

Wrongful Death: A death that occurs because of someone else’s malice, negligence, or recklessness.